revisiting the takings-based argument for compensating the

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\\server05\productn\N\NYS\60-1\NYS112.txt unknown Seq: 1 17-MAR-04 11:50 REVISITING THE TAKINGS-BASED ARGUMENT FOR COMPENSATING THE WRONGFULLY CONVICTED HOWARD S. MASTER* INTRODUCTION This Note argues that eminent domain principles may compel governments to compensate individuals who have been wrongfully convicted and imprisoned. 1 Professor Edwin Borchard raised the takings-based argument in favor of compensation as early as 1913 but was unsuccessful in persuading more than a handful of legisla- tures to adopt statutory compensation schemes on the basis of these and other arguments. 2 But recent developments in takings doc- * Managing Editor, NYU Annual Survey of American Law, 2002–03; J.D., magna cum laude , Order of the Coif, NYU School of Law, 2003. I would like to thank Bill Nelson for his insightful supervision of this Note, Adele Bernhard and Eric Berger for their helpful comments on drafts of the manuscript, David Shapiro for discussing with me several difficult issues raised by the project, and Michael Schill for his guidance throughout my law school career. The staff of the NYU Annual Survey of American Law, especially my Executive Articles Editor Douglas E. Julie, worked hard on this article and offered sound advice. This Note is dedicated to Nicole Rice, who supported my efforts to write it and inspired me with her own dedication to scholarship. 1. Eminent domain principles, embodied in what are known as the “takings clauses” of state and federal constitutions, require government to compensate indi- viduals under certain circumstances when it appropriates their property. The Tak- ings Clause of the Fifth Amendment to the United States Constitution states that “. . . nor shall private property be taken for public use without just compensa- tion. . . .U.S. CONST. amend. V. State takings clauses, discussed infra Part II.A, have similar constructions but may provide more extensive protections of property rights. 2. See Edwin M. Borchard, European Systems of State Indemnity for Errors of Crimi- nal Justice , 3 J. CRIM. L. & CRIMINOLOGY 684, 695 (1913) (discussing the eminent domain principles under which several European nations had grounded systems of compensation for the wrongfully convicted). Professor Borchard wrote several other influential articles and books over the course of his career arguing for provi- sion of compensation for the wrongfully convicted. One of the most influential of his subsequent works, Convicting the Innocent , led to passage of the first federal stat- ute providing limited compensation for those wrongfully convicted of federal crimes. See EDWIN M. BORCHARD, CONVICTING THE INNOCENT 417–21 (1932) (con- taining the text of a draft bill providing limited compensation for those wrongfully convicted of federal crimes) [hereinafter BORCHARD, CONVICTING THE INNOCENT]. See 28 U.S.C. §§ 1495 & 2513 (2000) (containing language similar to Borchard’s model statute). 97

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REVISITING THE TAKINGS-BASEDARGUMENT FOR COMPENSATING THE

WRONGFULLY CONVICTED

HOWARD S. MASTER*

INTRODUCTION

This Note argues that eminent domain principles may compelgovernments to compensate individuals who have been wrongfullyconvicted and imprisoned.1 Professor Edwin Borchard raised thetakings-based argument in favor of compensation as early as 1913but was unsuccessful in persuading more than a handful of legisla-tures to adopt statutory compensation schemes on the basis of theseand other arguments.2 But recent developments in takings doc-

* Managing Editor, NYU Annual Survey of American Law, 2002–03; J.D., magnacum laude, Order of the Coif, NYU School of Law, 2003. I would like to thank BillNelson for his insightful supervision of this Note, Adele Bernhard and Eric Bergerfor their helpful comments on drafts of the manuscript, David Shapiro fordiscussing with me several difficult issues raised by the project, and Michael Schillfor his guidance throughout my law school career. The staff of the NYU AnnualSurvey of American Law, especially my Executive Articles Editor Douglas E. Julie,worked hard on this article and offered sound advice. This Note is dedicated toNicole Rice, who supported my efforts to write it and inspired me with her owndedication to scholarship.

1. Eminent domain principles, embodied in what are known as the “takingsclauses” of state and federal constitutions, require government to compensate indi-viduals under certain circumstances when it appropriates their property. The Tak-ings Clause of the Fifth Amendment to the United States Constitution states that“. . . nor shall private property be taken for public use without just compensa-tion. . . .” U.S. CONST. amend. V. State takings clauses, discussed infra Part II.A,have similar constructions but may provide more extensive protections of propertyrights.

2. See Edwin M. Borchard, European Systems of State Indemnity for Errors of Crimi-nal Justice, 3 J. CRIM. L. & CRIMINOLOGY 684, 695 (1913) (discussing the eminentdomain principles under which several European nations had grounded systems ofcompensation for the wrongfully convicted). Professor Borchard wrote severalother influential articles and books over the course of his career arguing for provi-sion of compensation for the wrongfully convicted. One of the most influential ofhis subsequent works, Convicting the Innocent, led to passage of the first federal stat-ute providing limited compensation for those wrongfully convicted of federalcrimes. See EDWIN M. BORCHARD, CONVICTING THE INNOCENT 417–21 (1932) (con-taining the text of a draft bill providing limited compensation for those wrongfullyconvicted of federal crimes) [hereinafter BORCHARD, CONVICTING THE INNOCENT].See 28 U.S.C. §§ 1495 & 2513 (2000) (containing language similar to Borchard’smodel statute).

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trine and increased public recognition of the losses suffered by vic-tims of wrongful conviction grant new vitality to the takings-basedargument for compensation.

Wrongful conviction currently produces large numbers of un-compensated victims. Throughout the nation, DNA identificationtechnology, other scientific developments, and revelations of policeor prosecutorial misconduct have helped free hundreds of prison-ers wrongfully convicted of grave offenses. Yet the vast majority ofthese newly-freed individuals have been unable to obtain any com-pensation for lost wages, legal fees, psychological damage, or othereconomically-cognizable injuries caused by their wrongful impris-onment from the authority that wrongfully imprisoned them. Ex-isting constitutional and common-law tort doctrines, requiringproof of intentional misconduct and providing broad immunity tostate actors who brought about the wrongful conviction, bar all buta few wrongfully convicted individuals from recovering any dam-ages from those who harmed them. Most state and federal legisla-tures have failed to adopt statutory compensation schemes tosupplement existing common-law remedies, and even those thathave done so tend to shortchange those who qualify under theirterms. Recent advocacy for legislatively-enacted changes to tortdoctrine or provision of remedial schemes has failed to augmentmore than a few states’ compensation schemes. The absence ofwidespread legislatively-designed compensation schemes is not sur-prising, given the stigma attached to imprisonment and other insti-tutional barriers standing between the wrongfully convicted andlegislative recognition of their plight.

The Note examines recent decisions explicitly concluding thatgovernmental appropriations of labor are compensable under stateand federal eminent domain clauses to suggest a possible source ofcompensation. It concludes that the constitutional law of severaljurisdictions support colorable claims by the wrongfully convictedthat their imprisonment without cause effected a taking for whichjust compensation is due. It further determines that since no stateor federal jurisdiction has held governmental appropriations of la-bor to be inherently ineligible for compensation under eminent do-main principles, innovative constitutional arguments may bemarshaled on behalf of the wrongfully convicted in all jurisdictions.

Part I highlights the need for compensation for the wrongfullyconvicted, reviews the obstacles to compensation in most jurisdic-tions, and explains why innovation in constitutional doctrine maybe necessary if compensation is ever to be made readily available.Part II first examines the law of eminent domain related to govern-

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2004] COMPENSATING THE WRONGFULLY CONVICTED 99

mental appropriations of labor and develops arguments that wrong-ful conviction appropriates individuals’ property without justcompensation within the meaning of state or federal takingsclauses. Next, it explores potentially constitutionally relevant dis-tinctions between the wrongfully convicted and those who have al-ready been successful in bringing “labor-takings” claims. Part IIalso suggests that due process principles may require provision ofcompensation upon a finding that a conviction is erroneous. Fi-nally, this section of the paper briefly discusses the constitutionally-required remedies that would be available to the wrongfully con-victed if they are successful in arguing that their property was takenwithout just compensation. The Note concludes in Part III by call-ing for advocacy to explore whether the governmental appropria-tions caused by wrongful conviction are compensable undereminent domain principles.

The Note uses the term “wrongfully convicted” to refer only topeople who are actually innocent of the crimes for which they werecharged but who were nonetheless convicted. Because the Noteconcludes that takings claims are not generally available to thosewho have violated important civic duties,3 it does not examine rem-edies that may be available to those who committed crimes but wereconvicted under constitutionally defective procedures. The Notealso does not address important and unanswered collateral issues,addressed in depth by other scholars and existing statutes adminis-tering compensation schemes for the wrongfully convicted, includ-ing the process that must be used to determine actual innocence;the standard of proof that a freed individual must meet to provewrongful conviction; and other moral and pragmatic questions re-garding justifications for compensating those who may have in factcommitted a crime but who were convicted under constitutionally-defective processes.4

3. See infra Part II.A.2.4. For a discussion of the difficulties involved in “proving” innocence, see,

e.g., William S. Laufer, The Rhetoric of Innocence, 70 WASH. L. REV. 329, 385–91(1995) (discussing the varying definitions of innocence and the challenges associ-ated with assessing innocence in claims premised on wrongful conviction);Cathleen Burnett, Constructions of Innocence, 70 UMKC L. REV. 971 (2002) (discuss-ing the various types of claims of innocence that could have been brought by thoseasserting wrongful conviction). For a recommendation that a legal process be im-plemented to allow those who were acquitted of crimes, who had charges againstthem dropped, or whose convictions were overturned to obtain a legal determina-tion of factual innocence, see Andrew D. Leipold, The Problem of the Innocent, Acquit-ted Defendant, 94 NW. U. L. REV. 1297 (2000). For a summary of the standards ofproof of innocence required by states that have adopted wrongful conviction com-

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I.WHY COMPENSATE THE WRONGFULLY CONVICTED?

A. The Problem of Unremedied Wrongful Conviction1. The Criminal Justice System Produces Wrongful Convictions

We have long known that the criminal justice system can pro-duce erroneous convictions. Early work by authors such as EdwinBorchard and Jerome and Barbara Frank raised awareness of thepossibility that our criminal justice system generated mistakes.5The Innocence Project and other advocacy organizations have sub-sequently proven conclusively that hundreds of individuals havebeen imprisoned in recent years for crimes they did not commit.6These advocacy organizations relied heavily upon advances in fo-rensic science to reach their disturbing findings.7

News media and some politicians are consequently gaining in-creased awareness of the criminal justice system’s fallibility. Lastyear, former Illinois Governor George Ryan ordered a mass com-mutation of death sentences based on his lack of confidence in thestate’s process of determining guilt or innocence in capital cases,8

pensation statutes as a condition precedent of recovery, see Adele Bernhard, Table:When Justice Fails: Indemnification for Unjust Conviction, 7 U. CHI. L. SCH. ROUND-

TABLE 345 (2000) [hereinafter, Bernhard, Table] (summarizing existing wrongfulconviction compensation laws). See infra Part I.A for a discussion of existingwrongful compensation statutes.

5. See, e.g., BORCHARD, CONVICTING THE INNOCENT, supra note 2; JEROME FRANK R& BARBARA FRANK, NOT GUILTY (1957).

6. The Innocence Project, an organization headed by Barry Scheck and PeterNeufeld, has at last count obtained the reversal of 142 wrongful convictions on thebasis of DNA evidence that had not previously been tested. See The Innocence Pro-ject, at http://www.innocenceproject.org (last visited Mar. 2, 2004). See also JIM

DWYER, PETER NEUFELD, & BARRY SCHECK, ACTUAL INNOCENCE: FIVE DAYS TO EXECU-

TION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED (2000) (discussingcases in which individuals were found to be innocent of the crimes for which theywere convicted due to the work of the Innocence Project); MICHAEL L. RADELET ET

AL., IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES (1992).7. See, e.g., Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Fac-

tual Innocence and Post-Conviction DNA Testing, 151 U. PA. L. REV. 547, 550 n.12(2002) (summarizing recent advances in DNA technology that have enabled scien-tists to obtain essentially exact matches between small DNA samples and individu-als); Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies inthe Use of DNA Evidence to Establish Innocence After Trial (Nat’l Inst. of Justice, SeriesNo. 161258, 1996), available at http://www.ncjrs.org/txtfiles/dnaevid.txt (last vis-ited Mar. 2, 2004) (summarizing the use of recently-improved DNA testing tech-nology to obtain the reversal of twenty-eight wrongful convictions).

8. See Jodi Wilgoren, Citing Issue of Fairness, Governor Clears Out Death Row inIllinois, N.Y. TIMES, Jan. 12, 2003, at A1 (discussing former Illinois GovernorGeorge Ryan’s full pardon of four death row inmates and his mass commutation of

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2004] COMPENSATING THE WRONGFULLY CONVICTED 101

the convictions of those who were convicted of an infamous rape ofa jogger in Central Park were reversed,9 and dozens of African-American residents of Tulia, Texas, whom evidence suggests werewrongfully convicted of drug crimes based on the perjured testi-mony of a rogue police officer, neared full exoneration.10 The PBSnews program Frontline produced a documentary, entitled Burden ofInnocence, that focused on the harms suffered by the wrongfullyconvicted and examined the causes and effects of several other indi-viduals’ wrongful convictions.11 Newspapers have reported onother individuals’ exoneration on the basis of newly-discoveredphysical evidence.12 DNA testing may also free others who are now

all other state death sentences on the last day of his term as governor, following amoratorium on the death penalty that he imposed after twelve death row inmateswere executed and thirteen were exonerated in the years since Illinois authorizedits renewed death penalty in 1977).

9. In the “Central Park Jogger” case, five African-American youths were con-victed of the rape and beating of a white woman who was jogging in Central Parkon April 19, 1989, largely on the basis of their videotaped confessions. After an-other man named Matias Reyes, a convicted murderer and serial rapist, confessedto being the sole assailant and rapist of the jogger, the Manhattan District Attorneymoved to vacate the teens’ convictions. A Manhattan judge agreed to vacate theconvictions in late 2002. See Susan Saulny, Convictions and Charges Voided in ‘89Central Park Jogger Attack, N.Y. TIMES, Dec. 20, 2002, at A1. The five freed individu-als are planning to seek statutory compensation from the State of New York andare also considering suing the state for violating the youths’ civil rights by submit-ting them to improper questioning. See Daniel Wise, D.A.’s Theory Gives Boost toPossible Civil Action, N.Y.L.J., Dec. 20, 2002, at 1. Police and others, however, stillcontend that the youths in some way participated in the rape. Robert D. McFad-den, Boys’ Guilt Likely in Rape of Jogger, Police Panel Says, N.Y. TIMES, Jan. 28, 2003, atA1.

10. See, e.g., Melissa Drosjack, Perry Signs Bill to Free Tulia 13, HOUSTON

CHRON., Jun. 3, 2003, at 13A (discussing the Texas Governor’s signature of a billdesigned to expedite the release of the thirteen African-American Tulia residentsremaining in prison based on apparently perjured police testimony, and mention-ing the plight of an additional twenty-five residents of Tulia who were convictedbased on the same testimony and who are awaiting exoneration).

11. See Frontline: Burden of Innocence (PBS television broadcast, May 1, 2003)(detailing the fates of six men who were wrongfully convicted of and imprisonedfor serious crimes). A web site accompanying the documentary contains addi-tional information on governments’ failure to compensate the wrongfully con-victed, as well as the complete transcript and video file of the program. SeeFrontline: Burden of Innocence, at http://www.pbs.org/wgbh/pages/frontline/shows/burden/ (last visited Mar. 2, 2004).

12. See Stephanie Hanes, DNA’s Secrets Set a Man Free, BALT. SUN, Mar. 9, 2003,at 1A (discussing the exoneration of Bernard Webster, a man who had spent morethan ten years in jail for a rape that DNA testing proved he could not have commit-ted); Adam Liptak, Houston DNA Review Clears Convicted Rapist, and Ripples in TexasCould Be Vast, N.Y. TIMES, Mar. 11, 2003, at A14 (discussing the exoneration ofJosiah Sutton, who was convicted and sentenced to twenty-five years in prison for a

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imprisoned as these individuals gain access to the new technology,though there are a finite number of existing convictions obtainedon the basis of physical evidence in which that evidence is still avail-able but untested.13

2. The Wrongfully Convicted Lack Adequate Compensation

Wrongfully convicted individuals have suffered severe harm asa consequence of their imprisonment: they have lost their jobs andtheir good reputations, were unable to earn income while incarcer-ated, have often expended large amounts of money on legal ser-vices, have been deprived of liberty, sometimes for years, and havesuffered detrimental psychological consequences. Yet under ex-isting law, most of the individuals who are freed after being foundinnocent of the crimes for which they were convicted are unable toobtain any compensation from government or other sources for thelosses they sustained.

Ellen Reasonover’s experience illustrates the consequences ofthe widespread absence of compensation for those wrongfully con-victed of crimes. Reasonover was convicted of a murder she did notcommit and sentenced to life in a Missouri prison as a result ofnumerous constitutional violations by police and prosecutors at hertrial. Among the violations that were disclosed in Reasonover’shabeas proceedings were the state’s purchase of an informant’sfalse testimony and the prosecution’s failure to turn over severalsecret jailhouse tape recordings that contained clearly exculpatoryevidence. In 1999 a court ordered that she be released from prisonbut provided her no compensation for the almost seventeen yearsthat she had lost in prison without cause, and no state right of ac-tion was available for her to obtain compensation. Within two yearsof Reasonover’s release, she was essentially homeless, moving fromher now-grown daughter’s home to her mother’s, hunting for em-ployment, and psychologically scarred from her experience inprison. She remains without compensation for her ordeal.14

rape that he did not commit when the Houston, Texas police laboratory errone-ously concluded that the genetic material left by the rapist matched Sutton’s).

13. In the future, as DNA testing becomes widely available for crimes in whichdispositive physical evidence is available, wrongful convictions should result onlywhen corrupt or incompetent police laboratories generate false matches. The po-tential for false matches continues to be a real one. See Liptak, supra note 12 (dis- Rcussing widespread incompetence in the Houston police laboratory and thepossibility that several other individuals in addition to Josiah Sutton were wrong-fully convicted due to improperly administered DNA tests).

14. See Najeeb Hasan, Show Me the Money, RIVERFRONT TIMES (St. Louis, Mo.),Apr. 11, 2001, at 1 (discussing Reasonover’s struggles following her release from

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Stories similar to Reasonover’s are common. A study per-formed by the Innocence Project determined that only thirty-sevenpercent of recently exonerated individuals received even minimalcompensation from the jurisdictions that wrongfully convictedthem.15 The Life After Exoneration project concluded that legalexpenses and the absence of income during imprisonment de-prived the vast majority of the wrongfully convicted of all of theirassets, and that nearly half of all wrongfully convicted individualsearned less after their release than they did before theirconviction.16

The psychological and physical trauma of wrongful convictionalso cannot be underestimated. Clyde Charles, for example, pickedcotton at the Louisiana State Penitentiary at Angola while being im-prisoned for nearly eighteen years for a rape he did not commit.Prior to his conviction, he was earning a healthy income as a shrimpboat operator; after work by the Innocence Project conclusivelydemonstrated that he was innocent, he was released without anycompensation for his lost earnings and was unable to find employ-ment.17 Though Charles eventually obtained $200,000 in govern-mental compensation after agreeing to settle a federal lawsuitalleging prosecutorial misconduct, he remained psychologicallyscarred and unable to adjust to life outside of prison. PBS’s

prison in 1999); Associated Press, Wrongfully-Convicted Missourians Struggle After Re-lease, ST. LOUIS POST-DISPATCH, Jan. 5, 2003, at D9 (discussing Reasonover’s contin-uing difficulties finding employment and housing following her release fromprison).

15. See Frontline: Burden of Innocence: Frequently Asked Questions, http://www.pbs.org/wgbh/pages/frontline/shows/burden/etc/faqsreal.html (last visitedMar. 2, 2004) (discussing the results of the Innocence Project’s survey).

16. See id. (discussing results of a study by the Life After Exoneration Projectthat assessed the financial consequences of wrongful conviction and concludedthat over ninety percent of exonerees lost all of their assets while imprisoned andalmost half earn less than they did before their imprisonment).

17. Rhonda Bell & Pamela Coyle, Law Professor: Let Freed Inmates File StateClaim, TIMES-PICAYUNE (New Orleans, LA), Jan. 16, 2000, at 14A; see also Frontline:Burden of Innocence: Profiles: Clyde Charles, http://www.pbs.org/wgbh/pages/frontline/shows/burden/profiles/charles.html (last visited Mar. 2, 2004); Profile:Clyde Charles, The Innocence Project, at http://www.innocenceproject.org/case/display_profile.php?id=63 (last visited Mar. 2, 2004) (discussing the background ofCharles’s case and his exoneration in more detail); DNA test clears man of 1981 rape,implicates his brother, CNN.com, at http://www.cnn.com/2000/US/11/25/dna.wrong.brother.ap/ (last visited Mar. 2, 2004) (discussing work that Charlesperformed while imprisoned).

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Frontline found Charles living in his car and suffering from severedepression shortly after his release from prison.18

Vehicles for compensating the wrongfully convicted undercommon law and constitutional tort doctrines or, alternatively,through legislative action in the form of special bills or statutorycompensation schemes, have simply not proven capable of provid-ing meaningful remedies to most wrongfully convicted individu-als.19 As described in Adele Bernhard’s important article oncompensation for unjust conviction, When Justice Fails: Indemnifica-tion for Unjust Conviction, remedies at common law or via civil rightslegislation have been largely unavailable, absent proof of egregiousand intentional wrongdoing on the part of police or prosecutors,because immunity doctrines shield most individual wrongdoersfrom liability.20 As of 2003, only fifteen states, the District of Co-lumbia, and the federal government had established any statutorycompensation schemes,21 and the majority of those schemes pro-vide inadequate remedies to those who qualify under their terms.22

Other potential sources of compensation, such as private bills orspecial acts that provide designated compensation for a specificwrongfully convicted person, are unconstitutional in some statesand in others are unavailable to all but the politically connected.23

18. See Frontline: Burden of Innocence: Profiles: Clyde Charles, http://www.pbs.org/wgbh/pages/frontline/shows/burden/profiles/charles.html (last visited Mar.2, 2004).

19. See Adele Bernhard, When Justice Fails: Indemnification for Unjust Conviction,6 U. CHI. L. SCH. ROUNDTABLE 73, 86–101 (1999) (discussing shortcomings of cur-rent means by which wrongfully convicted individuals can currently obtaincompensation).

20. See id. at 86–92.21. See id. at 73 n.1. The states that have even technically provided for statu-

tory compensation for the wrongfully convicted are Alabama (in a law passed in2001), California, Maryland, Maine, Iowa, Illinois, New Hampshire, New Jersey,New York, North Carolina, Ohio, Texas, Tennessee, West Virginia, and Wisconsin.See Bernhard, Table, supra note 4 (describing relevant features of the state andfederal compensation statutes passed before 2000); Frontline: Burden of Innocence:FAQs: Compensating the Exonerated, at http://www.pbs.org/wgbh/pages/frontline/shows/burden/etc/chart.html (last visited Mar. 2, 2004) (describing the status ofall state wrongful conviction compensation statutes and pending legislation as ofearly 2003).

22. See infra notes 38–42 for a discussion of most statutes’ unreasonable caps Ron compensation, including the federal government’s $5000 total cap oncompensation.

23. See Bernhard, supra note 19, at 93–95; John J. Johnston, Comment & RNote, Reasonover v. Washington: Toward a Just Treatment of the Wrongfully Convictedin Missouri, 68 UMKC L. REV. 411, 416–18 (2000) (discussing the Missouri Consti-tution’s prohibition on private bills that could hypothetically provide Reasonover

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2004] COMPENSATING THE WRONGFULLY CONVICTED 105

a. Currently Available Judicial Remedies for WrongfulConviction

Professor Bernhard and other scholars have demonstrated whycurrently available common law and constitutional remedies are inmost cases incapable of providing the wrongfully convicted withmonetary relief.24 This Note therefore will only provide a briefoverview of the legal remedies and defenses available to govern-ments and public officials who are subject to suit.

Currently, wrongfully convicted individuals may be able to re-cover in court under one of three different intentional tort theo-ries: false arrest or imprisonment,25 malicious prosecution,26 andabuse of process.27 Wrongfully convicted individuals may also beable to recover damages under federal civil rights statutes, includ-ing 42 U.S.C. § 1983, for conduct leading to conviction that vio-

and other wrongfully-convicted individuals with relief). See also BORCHARD, CON-

VICTING THE INNOCENT, supra note 2, at 375 (“In a few cases . . . indemnity has been Rgranted to a particular unfortunate by special act. But such relief is spasmodiconly and few victims of wrongful conviction have the necessary friends or influenceto bring about the passage of a special legislative act.”).

24. See Bernhard, supra note 19, at 86–100; Joseph H. King, Jr., Comment, RCompensation of Persons Erroneously Confined by the State, 118 U. PA. L. REV. 1091,1098–1106 (1970) (discussing barriers to recovery even for fault-based torts by gov-ernment officials that caused wrongful conviction); Michael J. Saks et al., Toward aModel Act for the Prevention and Remedy of Erroneous Convictions, 35 NEW ENG. L. REV.669 (2001) (suggesting model scheme for compensating the wrongfully con-victed); Alberto B. Lopez, $10 And A Denim Jacket? A Model Statute For CompensatingThe Wrongly Convicted, 36 GA. L. REV. 665 (2002) (discussing shortcomings of cur-rent compensation schemes); cf. Keith S. Rosenn, Compensating the Innocent Accused,37 OHIO ST. L.J. 705 (1976) (discussing the legal barriers facing falsely-accusedindividuals seeking recovery for harms suffered).

25. See RESTATEMENT (SECOND) OF TORTS § 35 (1965) (describing the tort offalse imprisonment). Damages for false imprisonment claims, however, are lim-ited only to those associated with the time between arrest and institution of legalprocess. See Heck v. Humphrey, 512 U.S. 477, 484 (1994) (quoting W. Page et al.,PROSSER AND KEETON ON LAW OF TORTS § 888 (5th ed. 1984)).

26. See RESTATEMENT (SECOND) OF TORTS § 653 (1977):A private person who initiates or procures the institution of criminal proceed-ings against another who is not guilty of the offense charged is subject to lia-bility for malicious prosecution if(a) he initiates or procures the proceedings without probable cause and pri-

marily for a purpose other than that of bringing an offender to justice,and

(b) the proceedings have terminated in favor of the accused.27. See RESTATEMENT (SECOND) OF TORTS § 682 (1977) (“One who uses a legal

process, whether criminal or civil, against another primarily to accomplish a pur-pose for which it is not designed, is subject to liability to the other for harm causedby the abuse of process.”).

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lated their civil rights, often under a claim arising out of one of thethree common-law torts associated with wrongful imprisonmentand conviction.28

But these torts only enable recovery when a government offi-cial has deliberately acted wrongfully in a manner that caused theindividual seeking recovery to be arrested, tried, and convictedeven though the official knew that in actuality, probable cause didnot exist to believe the accused was guilty. Tort law does not evenhypothetically enable recovery when wrongful conviction wascaused by negligent or reckless acts by police, prosecutors, andjudges, much less when false or inaccurate witness testimony prima-rily caused the wrongful conviction. Strong official and sovereignimmunity doctrines often prevent those who would otherwise beable to make out a claim of intentional harm from obtaining com-pensation. Public prosecutors and judges enjoy absolute immunityfor acts in their official capacities which may have contributed to oreven directly caused wrongful conviction, even when their decisionswere made with the intent to wrongfully convict the individual.29

Police officers by and large are immune from liability for false im-prisonment suits, provided that their original arrest was madewithin the scope of their authority.30 Governments generally enjoysovereign immunity in claims directly against them for intentionaltorts such as wrongful imprisonment unless the immunity is waivedby statute.31 Recovery in court, unless pursuant to an already-estab-

28. See Heck, 512 U.S. at 477 (discussing the availability of Section 1983 claimsfor state prisoners whose convictions were overturned on the basis of common-lawtort theories).

29. See RESTATEMENT (SECOND) OF TORTS § 656 cmt. b (1977) (“[The privi-lege] protects the public prosecutor against inquiry into his motives, and fromliability, even though he knows that he has no probable cause for the institution ofthe proceedings and initiates them for an altogether improper purpose.”); Imblerv. Pachtman, 424 U.S. 409, 424–25 (1976) (holding that prosecutors were abso-lutely immune from suit under 42 U.S.C. § 1983 for malicious prosecution); New-some v. McCabe, 256 F.3d 747 (7th Cir. 2001) (Easterbrook, J.) (holding that thetort of malicious prosecution is not actionable under Section 1983); Jeffrey F.Ghent, Annotation, Civil Liability Of Judicial Officer For Malicious Prosecution Or AbuseOf Process, 64 A.L.R. 3d 1251 (1975) (discussing the general rule that judicial of-ficers are absolutely immune from prosecution for malicious prosecution unlessthey are acting outside the scope of their jurisdiction).

30. See Restatement (Second) of Torts §§ 118, 121–32 (1965) (discussing cir-cumstances under which a law enforcement officer enjoys absolute privilege toarrest an individual without incurring liability for false imprisonment).

31. See, e.g., VA. CODE ANN. § 8.01–195.3 (Michie 2003) (stating that thestate’s waiver of sovereign immunity does not apply to “any claim arising out of theinstitution or prosecution of any judicial or administrative proceeding, even ifwithout probable cause”); King, supra note 24, at 1103–05 (discussing governmen- R

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lished statutory scheme, has therefore been limited in recent yearsto a very small class of claimants, even when claimants are clearlyfactually innocent of the crimes for which they were charged andconvicted.

Current doctrine’s inability to provide the wrongfully con-victed with meaningful remedies has led many to abandon effortsto seek judicial redress. Professor Bernhard, for example, while ar-guing that governments have a moral obligation to compensate,concludes that “[c]learly, states have no obligation, enforceable inlaw, to indemnify.”32 Instead, advocates for compensation have for-mulated moral and pragmatic arguments to persuade state and fed-eral legislatures to pass statutes providing compensation for thewrongfully convicted.33

b. Legislative Grounds for Relief

Professor Bernhard has already analyzed and compared therelevant features of most state and federal compensationschemes,34 and has discussed the limitations of the “private bill” as ameans of providing fair payments to the wrongfully convicted.35

Building on Professor Bernhard’s work, this Note will focus on afew salient features of the existing statutes to demonstrate that,even when wrongfully convicted individuals reside in jurisdictions

tal immunity from suit on most claims available to the wrongfully convicted). Onthe other hand, the federal government has waived its immunity in cases in whichfederal law enforcement officers (but not prosecutors or judges) have committedone of the intentional torts that gives rise to liability. See 28 U.S.C. § 2680(h)(2000). The provision states that general waiver of sovereign immunity for tortclaims against the federal government does not apply to

[a]ny claim arising out of assault, battery, false imprisonment, false arrest, ma-licious prosecution, abuse of process, libel, slander, misrepresentation, deceit,or interference with contract rights: Provided, That, with regard to acts oromissions of investigative or law enforcement officers of the United StatesGovernment, the provisions of [the Federal Tort Claims Act] shall apply toany claim arising, on or after the date of the enactment of this proviso, out ofassault, battery, false imprisonment, false arrest, abuse of process, or maliciousprosecution.

Id.32. See Bernhard, supra note 19, at 92. R33. See supra note 24 (listing articles advocating for legislatively-enacted com- R

pensation schemes).34. See Bernhard, supra note 19, at 101–10. R35. Id. at 93–96 & n.85 (discussing problems associated with the private bill

process and several states’ constitutional limitations on the use of private or specialbills).

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that possess statutory compensation schemes, they are usually una-ble to receive reasonable compensation for their losses.

First, most existing compensation statutes require wrongfullyconvicted individuals to surmount onerous procedural obstacles inorder to be eligible for compensation. The five jurisdictions thatrequire pardons as conditions precedent to recovery politicize theprocess of compensation and prevent many individuals who werewronged by the state from obtaining meaningful recovery.36 Evenother states that do not require pardons as conditions precedent torecovery may impose procedural requirements on claimants thatrender many possible claims for compensation non-viable. For ex-ample, New York’s requirement that convicted individuals obtainan acquittal or a dismissal on grounds of innocence prevented BettyTyson, a woman who was released from prison after spending morethan twenty-five years behind bars, from obtaining compensationdespite proof of prosecutorial misconduct and a colorable claim ofinnocence.37

Second, even if the necessary procedural and substantive hur-dles are overcome under these statutes and a wrongfully convictedindividual is determined to be eligible for compensation, awards

36. See Bernhard, supra note 19, at 103–05 (criticizing the pardon require- Rments imposed by several states as imposing an element of political favoritism andarbitrariness); Bernhard, Table, supra note 4 (listing California, Maryland, Maine,Illinois, and North Carolina as requiring pardons as conditions precedent to recov-ery under the states’ wrongful conviction statutory compensation schemes). Bern-hard also lists Texas as requiring wrongfully convicted individuals to obtain apardon before they can recover; this was true until 2001, when the state reformedits statutory scheme to allow individuals who were granted relief on the basis ofactual innocence to qualify for compensation without also needing a pardon. SeeTEX. CIV. PRAC. & REM. CODE ANN. § 103.001 (Vernon 2001) (enabling an individ-ual to obtain compensation for wrongful conviction without also requiring apardon).

37. See, e.g., N.Y. CT. CL. ACT § 8-b(5) (2003) (requiring the individual seek-ing compensation to have been pardoned on the ground of innocence, have had acourt specifically dismiss the charges against him or her on grounds consistentwith innocence, or have been acquitted at retrial). In State v. Tyson, 698 N.Y.S.2d410, 415–16 (N.Y. Ct. Cl. 1999), the court determined that it could not grant BettyTyson’s claim for compensation because her conviction was overturned on the ba-sis of improper withholding of exculpatory evidence rather than on the statutorily-required basis of a finding of innocence. See id. (“[T]he Legislature, in its wisdom,has placed a high threshold upon those seeking recompense under this statute,and unfortunately for Betty Tyson, her claim cannot surmount that limitation. Andnote that this is a threshold, not a roadblock, because the remedy for which recom-pense is sought here is a statutory creation, not a common law right, and thus I ambound by the Legislature’s draftsmanship. So unfortunately for Betty Tyson, therecan be no recovery here, and no opportunity for her to prove her innocence, per-haps her ultimate goal.”).

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that the individuals might receive under the statutory schemesoften inadequately compensate for legal fees, lost wages while inprison, and medical and psychological expenses associated with thetrauma of wrongful imprisonment. Of the seventeen statutory com-pensation schemes, eleven possess statutory caps on damages, andseveral of those twelve possess damage caps so low as to make theirpromises of compensation illusory.38 The federal government’swrongful conviction compensation statute stands out in this regardas being particularly egregious; it authorizes only $5000 in totalcompensation for wrongful conviction, regardless of the durationof imprisonment or the actual damages suffered by the wrongfullyconvicted individual.39 Illinois caps damages on a sliding scale thatprevents recovery of more than $15,000 for up to five years of incar-ceration and more than $35,000 total, though the statute perverselyindexes these small amounts of maximum recovery to the inflationrate.40 Even states such as California, Texas, and North Carolina,which have recently revised their compensation statutes to increasethe amount of money that a wrongfully convicted individual canhypothetically recover, still cap damages at levels inadequate forthose who have suffered significant damages as a result of theirwrongful imprisonment.41 Only Maryland, New York, the District

38. The federal government, Alabama, California, Iowa, Illinois, Maine, NewHampshire, New Jersey, North Carolina, Texas, West Virginia, and Wisconsin arethe twelve jurisdictions that possess statutory caps on damages. See supra note 21 Rand accompanying text (listing the jurisdictions that possess statutory compensa-tion schemes and citing sources containing further information on the schemes).

39. See 28 U.S.C. § 2513 (2000) (capping statutory damages available to thewrongfully convicted at $5000). Recent efforts by some in Congress to rectify thissituation have been unavailing. The Innocence Protection Act of 2001 originallycontained a provision that would increase the compensation provided in cases offederal wrongful imprisonment from $5000 in total to $50,000 per year for non-capital convictions and $100,000 per year for capital convictions. S. 486, 107thCong § 301 (2001). This provision, as well as a provision that would have requiredstates to assure the Attorney General that they are “reasonably compensating” indi-viduals wrongfully convicted of capital offenses, id. § 302, were struck from the billwhen the bill was reported from committee on October 16, 2002. S. REP. NO. 107-315 (2002). The bill did not pass during the 107th Congress; when it was revivedin 2003 as part of a larger Democrat-sponsored domestic security bill, the provisionproviding for federal compensation was reinserted but watered down to allow foronly $10,000 per year of wrongful incarceration, and the provision mandating thatstates provide reasonable compensation remained stricken from the bill. See S. 22,108th Cong. §§ 6401–02 (2003).

40. See 705 ILL. COMP. STAT. 505/8(c) (2003).41. See CAL. PEN. CODE § 4904 (West 2003) (increasing available compensa-

tion from a maximum of $10,000 to a recommended sum of $100 per day of im-prisonment); N.C. GEN. STAT. §§ 148-82–148-84 (2002) (increasing availablecompensation from $10,000 per year to $20,000 per year and total available com-

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of Columbia, Ohio, West Virginia and Tennessee do not limit re-covery for wages lost during imprisonment, and only a subset ofthese states make recovery for other damages suffered freelyavailable.42

B. Rationales for Compensation

This Note advocates for increased availability of publicly-funded compensation for the wrongfully convicted on the groundsthat the failings of the current system produce inefficiency and in-justice, and are inconsistent with legal developments sinceBorchard’s time that have empowered individuals to obtain reliefwhen government has wronged them.43 The following section sum-marizes several utilitarian and moral arguments in favor of ex-panding compensation available to the wrongfully convicted.

1. Utilitarian Arguments

a. Compensation Motivates Government to Protect the Innocentfrom Wrongful Conviction

Expansion of governmental liability for erroneous convictionsmay benefit society if it encourages government to take greater carein using the criminal justice system to obtain convictions. By shift-ing costs of error from the wrongfully convicted individual to thegovernment that secured the wrongful conviction, a full compensa-tion regime should encourage government agents to take precau-

pensation from $150,000 to $500,000); TEX. CIV. PRAC. & REMEDIES CODE ANN.§ 103.052 (Vernon 2003) (increasing the amount of compensation available from$50,000 total to $25,000 per year of incarceration up to a total of $500,000, plusone year of counseling).

42. See Frontline: Burden of Innocence: FAQs: Compensating the Exonerated, http://www.pbs.org/wgbh/pages/frontline/shows/burden/etc/chart.html (last visitedMar. 2, 2004) (detailing the absence of explicit caps on damages in those sixjurisdictions).

43. For examples of cases in which courts have expanded remedies availableto individuals harmed by government since Professor Borchard first proposedcompensating the wrongfully convicted, see, e.g., Bivens v. Six Unknown NamedAgents, 403 U.S. 388 (1971) (determining that individuals could seek damagesagainst federal officials for federal constitutional violations), and First English Lu-theran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) (stating thatcompensation for temporary takings was constitutionally required), discussed infraPart II.C. The trend towards expansion of remedies available to those harmed bygovernment is not a universal one, and remedies hypothetically available underBivens, First English, and other cases may prove difficult to obtain. But the expan-sion of remedies judicially available to parties in circumstances similar to thewrongfully convicted nonetheless justifies a reexamination of Borchard’s earlierarguments for compensation.

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tions necessary to avoid wrongful convictions.44 Assuming thatgovernment actors will be motivated by the threat of public or indi-vidual liability for the criminal justice system’s mistakes,45 provisionof full compensation should cause prosecutors’ motives to be prop-erly aligned with their ethical duties to do justice and seek truth.46

Increasing the availability of monetary relief for the wrongfully con-victed may also encourage lawyers to represent those whom theybelieve to be wrongfully convicted, improving wrongfully convictedprisoners’ ability to receive the full measure of justice to which theyare entitled.47

b. Compensation as Social Insurance

An expanded compensation regime would also act as a form ofsocial insurance to spread the risk of harm from a socially beneficialbut still dangerous criminal justice system.48 If governmental com-

44. See, e.g., Rosenn, supra note 24, at 716–17 (“[I]mposition of strict state Rliability would bring important collateral benefits. First, imposing these costs onthe state may discourage police and prosecutors from bringing groundless prose-cutions, or at least induce greater circumspection in invoking the machinery of thecriminal justice system.”).

45. Some have contested the claim that imposition of financial liability ongovernment alone for constitutional injuries will cause government officials tochange their behavior. See, e.g., Daryl J. Levinson, Making Government Pay: Markets,Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2000) (argu-ing that government actors focus on political rather than financial consequencesof their actions and that therefore, a government compensation requirement maynot effectively deter harmful conduct by government actors).

46. See Bennett L. Gershman, The Prosecutor’s Duty to Truth, 14 GEO. J. LEGAL

ETHICS 309, 312–15 (2001) (arguing that the prosecutor has an obligation to seektruth, despite the effect that this obligation may have on her ability to obtain con-victions). Prosecutors’ duty to seek truth, however, may interact with their desireto minimize government liability for wrongful convictions in unclear ways. If pros-ecutors are concerned about minimizing possible government liability once a po-tential error was discovered, they may have a stronger incentive to resist discoveryof that error. While expansion of compensation may reduce the likelihood of er-ror in the first instance, it may reduce already-wronged individuals’ opportunitiesto vindicate themselves if the threat of compensation causes prosecutors to resistmore stringently post-conviction procedures that could reveal actual innocence.Thanks to the Honorable Pierre Leval for illuminating this potential consequenceof an expanded compensation regime for me.

47. See Bernhard, supra note 19, at 107 (“Parsimonious monetary limits dis- Rsuade counsel from pursuing wrongful conviction claims on behalf of exoneratedindividuals, and discourage counsel from assisting those who are still in prison andable to present a reasonable claim of innocence which requires development.”).

48. See, e.g., BORCHARD, CONVICTING THE INNOCENT, supra note 2, at 390 R(“Where the common interest is joined for a common end, with each individualsubject to the same danger [i.e., erroneous conviction], the loss, when it occurs,

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pensation were freely available to remedy the criminal justice sys-tem’s errors, society as a whole rather than a lone, injuredindividual would bear the costs of wrongful conviction.49 Much asworkers’ compensation systems ensure that unfortunate individualsdo not disproportionately bear the damages inflicted by a labormarket that must exist but poses dangers, an adequate compensa-tion regime for the wrongfully convicted would free the typical vic-tim of wrongful conviction from total impoverishment whileallowing the criminal justice system to continue to function.50 Thisform of cost-shifting would internalize the social costs of wrongfulconviction and enable society to strike a better balance betweenprocedures that facilitate convictions and those that protect the po-tentially innocent suspect from wrongful conviction.

2. Moral Arguments

a. Fairness to Those Harmed By Government

Wrongfully convicted individuals also ought to be able tomount moral arguments that they are personally deserving of com-pensation for the harms that they suffered. The Court’s claim inMarbury v. Madison that “the very essence of civil liberty certainlyconsists in the right of every individual to claim the protection ofthe laws whenever he receives an injury”51 may be aspirational, par-ticularly when a non-negligent accident causes injury. But at leastin some circumstances, especially those in which individuals did notcontribute to their own convictions and in which government ac-tors could have avoided wrongful convictions by taking reasonable

should be borne by the community and not alone by the injured individual.”);King, supra note 24, at 1096–97 (“Liability for erroneous confinements—‘special Rsacrifices’ demanded by the government of its citizens, who acquiesce in the use ofan imperfect instrumentality [i.e., the criminal justice system]—should be im-posed upon the government not because it was at fault by conventional standardsbut as a matter of social adjustment.”).

49. See King, supra note 24, at 1109 (“The avowed goal of the absolute liability Rapproach is allocation of loss to the party better equipped to pass it on to thepublic: the superior risk bearer. . . . The policy . . . should be one of transferringlosses only when necessary to achieve the overriding goal of proper loss alloca-tion—when, in other words, the shift is from an inferior to a superior risk bearer.”)(quoting Clarence Morris, Hazardous Enterprises and Risk Bearing Capacity, 61 YALE

L.J. 1172, 1176 (1952)).50. See BORCHARD, CONVICTING THE INNOCENT, supra note 2, at 390 (“The

workmen’s compensation acts are perhaps the clearest illustration of this broadchange in legal principle, which now applies to many cases in which any memberof a large social group is subjected to the danger of recurring accident and where amore equitable distribution of the loss seems mandatory.”).

51. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

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precautions, one could argue persuasively that the wrongfully con-victed ought to have this restitutionary right.

Some have also argued that government has a special obliga-tion to compensate the wrongfully convicted, regardless of evidenceof fault, because it controlled the instrumentality that inflicted theharm. Building on Bivens’ discussion of government’s unique abil-ity to injure individuals,52 this argument claims that the state’s—and by extension, the public’s—involvement in procuring and en-forcing wrongful convictions makes them worthy of state compensa-tion. As Professor Bernhard asserts:

After all, it is the state, through operation of one of its mostessential services—the criminal justice system—that has in-flicted the harm. Although it may be impossible to hold anyindividual law enforcement officer, or any particular munici-pality, liable, the state’s responsibility for the injury is sufficientto generate a moral obligation.53

b. Equal Treatment of Those Similarly Situated

Some advocates for compensation have also asserted that refus-ing to compensate the wrongfully convicted would be unfair whenmany with less of a claim on government coffers are already receiv-ing compensation. This argument counters claims that providingadequate compensation to the wrongfully convicted would be infea-sible because it is too expensive.54

52. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 391–92 (1971).The court wrote:

[Government r]espondents seek to treat the relationship between a citizenand a federal agent unconstitutionally exercising his authority as no differentfrom the relationship between two private citizens. In so doing, they ignorethe fact that power, once granted, does not disappear like a magic gift when itis wrongfully used. An agent acting—albeit unconstitutionally—in the nameof the United States possesses a far greater capacity for harm than an individ-ual trespasser exercising no authority other than his own.

Id.53. See Bernhard, supra note 19, at 93. R54. BORCHARD, CONVICTING THE INNOCENT, supra note 2, at 387. Professor R

Borchard noted:It may seem strange that this principle of compensation, so obviously just,which had, moreover, received the general recognition and support of jurists,publicists, and legislators, should have had to wait so many decades beforeacceptance in the actual legislation of modern states. The reason for the de-lay was, in part, the unwillingness to open already cramped treasuries to whatseemed unlimited inroads . . . .

Id.

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Professor Bernhard uses the universal availability of crime vic-tims’ compensation schemes, at the same time that compensationschemes for the wrongfully convicted are rare, to make this argu-ment; Bernhard notes that all fifty states and the federal govern-ment have passed crime victims’ compensation legislation since1954.55 According to a 1996 book on compensation for victims ofcrime, federal and state victims’ compensation funds cost govern-ments over $114 million per year in direct payments to victims, overand above the approximately $8 billion per year spent by govern-ment on social insurance to compensate crime victims.56 Twenty-seven states’ crime victims’ compensation funds even offer compen-sation for wages lost as a result of victimization.57

Governments have figured out creative ways to fund victims’compensation schemes, despite budgetary limitations, many believ-ing that they are morally obligated to compensate victims. The fed-eral government, for example, funds its victims’ compensationscheme in part by depositing certain federal fines into the compen-sation fund.58 Florida has made its belief that it is morally obligatedto compensate victims explicit in the statute establishing thescheme.59

55. See Bernhard, supra note 19, at 97. R

56. See SUSAN KISS SARNOFF, PAYING FOR CRIME: THE POLICIES AND POSSIBILITIES

OF CRIME VICTIM REIMBURSEMENT 2–5 (1996). See also DALE G. PARENT ET AL.,NAT’L INST. FOR JUST., COMPENSATING CRIME VICTIMS: A SUMMARY OF POLICIES AND

PRACTICES (1992), cited in Bernhard, supra note 19, at 97 n.98 (discussing govern- Rment expenditures on victims of crime); Victims of Crime Act of 1984, Pub. L.98–473, §§ 1402–04, 98 Stat. 2170, 2710–14 (codified as amended at 42 U.S.C.§ 10601-04 (2002)) (establishing a federal crime victims’ fund and authorizing is-suance of grants from the fund to state crime victims’ compensation programs).

57. See SARNOFF, supra note 56, at 60–61 t.6.1 (listing compensation available Rfrom all fifty states’ victims’ compensation funds).

58. See, e.g., 42 U.S.C. § 10601(b) (2003) (listing types of fines paid to thefederal government that are to be deposited in the federal crime victims’ fund).

59. See FLA. STAT. ANN. § 960.02 (West 2002), cited in Bernhard, supra note 19, Rat 99 n.113:

The Legislature recognizes that many innocent persons suffer personal injuryor death as a direct result of adult and juvenile criminal acts or in their effortsto prevent crime or apprehend persons committing or attempting to commitadult and juvenile crimes. Such persons or their dependents may thereby suf-fer disabilities, incur financial hardships, or become dependent upon publicassistance. The Legislature finds and determines that there is a need for gov-ernment financial assistance for such victims of adult and juvenile crime. Ac-cordingly, it is the intent of the Legislature that aid, care, and support beprovided by the state, as a matter of moral responsibility, for such victims ofadult and juvenile crime.

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The universal presence of crime victims’ schemes, when con-trasted with the general absence of wrongful conviction victims’schemes, which are largely absent, rankles Professor Bernhard. Ifgovernments are morally obligated to compensate individualsharmed by criminals without any direct involvement of governmentin inflicting the harm, according to Bernhard, then they certainlyshould be morally obligated as well to compensate wrongfully con-victed individuals harmed directly by their criminal justicesystems.60

c. Solicitude Towards the Politically Powerless

The reasons why crime victims are found deserving of compen-sation, while victims of wrongful conviction generally are not, re-quire close examination to determine whether the wrongfullyconvicted may be deserving of special judicial solicitude. ProfessorBorchard argued in 1932 that wrongfully convicted individuals wereundercompensated because those subject to erroneous convictionwere “a weak social group.”61 The Supreme Court in United States v.Carolene Products recognized a few years after Borchard wrote hisstatement that “discrete and insular minorities” may suffer fromprejudice that “tends seriously to curtail the operation of those po-litical processes ordinarily to be relied upon to protect minorities,”and that in this situation, a “more searching judicial inquiry” maybe required.62

Today’s “discrete and insular minorities” run a far higher riskof wrongful conviction than other groups. Evidence suggests that“those affected by wrongful arrest and conviction” continue to be a“weak social group” for at least two reasons. First, ethnic and racialminorities have been disproportionately subject to imprisonment,both proper and improper.63 For example, seventy-three percent

60. See Bernhard, supra note 19, at 93–94. R61. BORCHARD, CONVICTING THE INNOCENT, supra note 2, at 390 (“[T]hose af- R

fected by wrongful arrest or conviction are a weak social group, whose voice isalmost unheard, and whose rights are only at this late day securing slight recogni-tion because of a general altruistic sense of social justice.”).

62. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).63. See, e.g., The Sentencing Project, Facts about Prisons and Prisoners, at http:/

/www.sentencingproject.org/brief/pub1035.pdf (last visited Mar. 2, 2004) (ex-plaining that 45% of prison inmates in 2001 were black and 18% were Hispanic,and that black males have a 32% chance of serving time in prison at some point intheir lives, while Hispanic males have a 17% chance of serving time in prison andwhite males only have a 6% chance of spending time in prison); Bureau of JusticeStatistics, Lifetime Likelihood of Going to State or Federal Prison (March 1997), availableat http://www.ojp.usdoj.gov/bjs/pub/pdf/llgsfp.pdf (Mar. 2, 2004) (providing

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of the wrongfully convicted individuals freed thanks to the work ofthe Innocence Project are members of racial minority groups.64

Meanwhile, crime victimization rates are similar across racial andethnic lines.65 This may help explain why crime victim compensa-tion legislation has been so successful, even while wrongful convic-tion compensation legislation has tended to languish. Second,public stigmatization of those who have been imprisoned66 even ifinnocent,67 may further hinder the ability of wrongfully convictedindividuals to obtain redress through the political process.

If one believes in the logic and moral calculus of Carolene Prod-ucts, then the judiciary ought to explore means of remedying theharms suffered by the wrongfully convicted after concluding thatlack of legislative commitment to the wrongfully convicted’s “justcause” derives at least in part from their low social status. John HartEly’s work building on Carolene Products concludes that “constitu-tional law appropriately exists for those situations where representa-tive government cannot be trusted, not those where we know itcan.”68 Since representative government has through its sustainedinaction shown that, by and large, it cannot be trusted to providereasonable compensation for the wrongfully convicted, this Noteturns to constitutional law for a possible avenue to compensation.

more detailed statistics on the likelihood of being incarcerated in prison for vari-ous demographic groups and noting that the statistics do not include individuals’likelihood of being incarcerated in a local jail rather than in a state or federalcorrectional facility).

64. Innocence Project, Mistaken I.D., at http://www.innocenceproject.org/causes/mistakenid.php (last visited Mar. 2, 2004) (discussing the racial composi-tion of those whose convictions were overturned due to the work of the InnocenceProject and explaining that 61% of those exonerated were African-American and73% of those exonerated were members of minority groups).

65. See Bureau of Justice Statistics, Criminal Victimization 2001 (Sept. 2002)available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cv01.pdf (last visited Mar. 2,2004) (concluding that crime victimization rates were similar across racial and eth-nic groups in 2001).

66. See Doretha M. VanSlyke, Note, Hudson v. McMillan and Prisoners’ Rights:The Court Giveth and the Court Taketh Away, 42 AM. U. L. REV. 1727, 1727 (1993)(“Prisoners have been described as the starkest example of a ‘discrete and insularminority’; they are politically powerless and subject to public disdain and apathy.”)(citations omitted); Rhodes v. Chapman, 452 U.S. 337, 358 (1981) (Brennan, J.,concurring) (“Public apathy and the political powerlessness of inmates have con-tributed to the pervasive neglect of the prisons.”).

67. See Leipold, supra note 4, at 1299 (discussing the stigmatization from Rwhich those who were accused of a crime but later acquitted suffer).

68. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW

183 (1980).

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C. The Possibility of Takings-Based Relief

This Note examines whether state and federal takings clausescan serve as this source of compensation. If this Note is correct inarguing that wrongfully convicted individuals are being undercom-pensated for their injuries; that full compensation would be bothequitable and socially beneficial; and that legislators may nonethe-less continue to refuse to provide meaningful relief to the wrong-fully convicted, then development of constitutional or common-lawlegal doctrine may be necessary to provide the wrongfully convictedwith the relief that they deserve. Other scholars have already ar-gued for relaxation of restrictions on traditional tort-based causesof action,69 but have generally failed to explore the possibility oftakings-based relief in any depth.

These scholars have avoided discussion of takings-based reliefdespite eminent domain principles’ longstanding use as a sourcefor arguments that wrongfully convicted individuals are deservingof government compensation. Professor Borchard noted that theargument for compensation based on eminent domain principleswas introduced as early as the nineteenth century in Europe.70

Borchard himself claimed that eminent domain principles shouldsupport provision of a remedy for the wrongfully convicted, be-cause if government must compensate when it takes property, howcan it have the power to take the wrongfully convicted’s liberty, atleast as great of a right, with impunity?71

Opponents of this argument have responded by claiming thatregardless of the fairness of the differential treatment afforded lib-erty and property interests, the eminent domain principles only re-quire compensation for government appropriations of realproperty, not for appropriations of liberty interests.72 Those who

69. For example, Professor King’s comment, supra note 24, focuses on recom- Rmending revisions to tort doctrine that would allow expansion of compensationfor the wrongfully convicted.

70. See BORCHARD, CONVICTING THE INNOCENT, supra note 2, at 391 (discussing REuropean scholars’ doctrinal arguments for compensation based on eminent do-main principles).

71. See id. at 388–89.72. Professor Rosenn, for example, stated that “[t]he eminent domain anal-

ogy is a strained basis for imposing liability on the government for erroneous pros-ecutions.” Rosenn, supra note 24, at 715. Johnston, supra note 23, at 413, Rsummarily dismisses the takings-based argument based on Rosenn’s earlier analysisof the issue. Professor Bernhard was specifically referring to the takings-based ar-gument when she stated that no legal obligation to indemnify existed. See Bern-hard, supra note 19, at 92 n.78 (stating that Borchard’s “attempts to discover a R

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argue against Borchard therefore must believe that governmenttakes no property from those it wrongfully convicts and imprisons.73

But the argument that eminent domain principles are neverimplicated by wrongful imprisonment’s deprivation of its victims’labor and liberty rests on a fallacy, for liberty and property interestsare not mutually exclusive.74 Recognizing this, courts have explic-itly used eminent domain principles in recent years to require com-pensation for certain governmental appropriations of labor, andhave suggested more generally that governmental appropriations oflabor give rise to takings claims unless the appropriation is simplyrequiring performance of a duty already owed the state. Thoughthis Note does not claim that liberty and property rights are synony-mous, these recent cases’ acceptance of the common sense notionthat individuals have property rights in their productive laborshould allow advocates to argue that the wrongfully convicted werealso deprived of their property when they lost their productive la-bor to imprisonment.75

legal obligation in the concept of eminent domain or through an analogy to com-pulsory jury or military service proved unpersuasive”).

73. Professor King believed in 1970 that the takings-based argument wouldhave difficulty succeeding, “due in part to restrictive definitions of ‘property’ foreminent domain purposes and the notion that the government should receive tan-gible benefit for the taking.” King, supra note 24, at 1093 n.15. King did not, Rhowever, believe that a constitutional takings-based argument for compensationwas incapable of success:

Failure to discuss a constitutional basis mandating compensation for errone-ous confinements is not intended as a final rejection of such an argument.Indeed, those persons erroneously confined might allay the fear of un-restricted liability by providing the courts with a sufficiently well-defined classof plaintiffs and thus inspire serious consideration of a constitutionally basedground for compensation.

Id.74. See Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972). The court

wrote:[T]he dichotomy between personal liberties and property rights is a false one.Property does not have rights. People have rights. . . . In fact, a fundamentalinterdependence exists between the personal right to liberty and the personalright in property. Neither could have meaning without the other. That rightsin property are basic civil rights has long been recognized.”

Id. (citing, inter alia, JOHN LOCKE, OF CIVIL GOVERNMENT (Ernest Phys ed., E.P.Dutton & Co. 1947) (1691)), quoted in Wayne McCormack, Property and Liberty—Institutional Competence and the Functions of Rights, 51 WASH. & LEE L. REV. 1, 4 n.9(1994). McCormack argues that “[t]he terms property and liberty actually signifyoverlapping portions of a spectrum of human activity ranging from that which ismost isolated to that which is most interlocked with other people.” Id. at 1.

75. This Note does not contend that the common sense relationship betweenindividual labor and property rights is universally agreed upon by legal scholars or

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Developments in substantive takings law have increased thelikelihood that the wrongfully convicted should be entitled to a fi-nancial recovery from the state if a taking is found to have oc-curred. Compensation is now compelled when government takesproperty, even temporarily. Recent case law also suggests that rem-edies under the federal Takings Clause may be constitutionally re-quired, despite the existence of sovereign immunity.76

Courts’ application of takings law to the wrongfully convictedwould continue the use of eminent domain principles as tools toprotect politically weak minorities from being harmed by govern-ment without recourse. Many have understood takings law as a toolto protect politically weak individuals from exploitation.77 Ex-panding takings remedies available to the wrongfully convicted alsowould provide a form of social insurance78 and create incentives forgovernment to take due care to reduce erroneous convictions aseffectively as an expanded tort doctrine or statutory compensationscheme.79

philosophers. Instead, it seeks to build its argument on already-existing legal doc-trine holding that individuals have legally-protected property rights in their labor.For a more in-depth discussion of the origins of the relationship between laborand property and the arguments marshaled for and against the legal recognitionof this relationship, see Part II.A.4.

76. See infra Part II.C for discussion of First English Evangelical Lutheran Churchof Glendale v. County of Los Angeles, 482 U.S. 304 (1987), which concluded that com-pensation was required for a temporary taking and asserted in dicta that govern-ment’s obligation to compensate for takings trumped state sovereign immunity.

77. Professor Ely has interpreted the Fifth Amendment’s Takings Clause “asyet another protection of the few against the many . . . .” ELY, supra note 68, at 97. RSee also Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem ofTakings, 92 NW. U. L. REV. 591, 593 n.8 (1998) (stating that “some understand the[Takings] Clause as a barrier against the exploitation of weaker groups orindividuals”).

78. See Armstrong v. United States, 364 U.S. 40, 49 (1960) (“The Fifth Amend-ment’s guarantee that private property shall not be taken for a public use withoutjust compensation was designed to bar Government from forcing some peoplealone to bear public burdens which, in all fairness and justice, should be borne bythe public as a whole.”).

79. See King, supra note 24, at 1092–93 n.14 (“Both foregoing theories [i.e., Rtort-based and takings-based] involve a quid pro quo whereby the state would offercompensation in exchange for a necessary deprivation of the freedom of certainmen. . . . It is irrelevant whether one speaks in terms of the ‘risk’ of erroneousconfinement, or of the act of confinement as a ‘taking.’ The transaction would bethe same regardless of the terminology—erroneous loss of freedom traded forcompensation.”).

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II.APPLYING TAKINGS DOCTRINE TO ARGUE FOR

COMPENSATION FOR THE WRONGFULLY CONVICTED

This section of this Note discusses doctrine that could be usedto advance arguments that eminent domain principles compel theprovision of compensation for the wrongfully convicted. Takingsdoctrine has flourished over the past several decades as property-rights principles have gained influence in the United States Su-preme Court and state high courts. Recent decisions holding thatlabor is a form of property protected by eminent domain principlesenable individuals who were wrongfully convicted to argue that theproductive value of their labor was taken from them while they wereimprisoned. Supreme Court determinations that compensation isconstitutionally mandated for a temporary taking should enable in-dividuals to receive compensation for the period during which theywere wrongfully confined by the state and incapable of laboringproductively for themselves. Other developments in takings lawhave also made it easier for wrongfully convicted individuals to ob-tain relief.

This Note argues that the property that was “taken” within themeaning of state or federal takings clauses was the value of the pro-ductive labor that was appropriated by government during impris-onment and either left to waste or used to provide services withinprison for little or no compensation, because legal doctrine has inmany jurisdictions developed in a manner favorable to this claim.Other losses associated with wrongful conviction may be compensa-ble under eminent domain or due process principles,80 and yetother substantial injuries to wrongfully convicted individuals’mental and physical health may both be worthy of compensationand not compensable under the takings doctrine discussed above.But this Note does not seek to insure that the wrongfully convictedreceive the full measure of compensation that would restore themto the exact position they were in before they were injured by thestate. Instead, it seeks to ensure that the wrongfully convicted re-ceive fair compensation for government harm to a property interestthat has been recognized in many jurisdictions.81

80. See infra note 140 and accompanying text (discussing cases holding that Rwrongfully-convicted individuals must be compensated under due process princi-ples for fines paid as part of their sentence).

81. This Note also does not address the possibility that those who were wrong-fully arrested as well as those who were wrongfully convicted might be entitled tosome form of restitution under eminent domain or other principles, though muchof the following discussion may be applicable to these individuals as well. See, e.g.,

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A. The Threshold Question: Is Labor Protected By the Takings Clause?

The initial challenge facing a wrongfully convicted individualwho seeks compensation under a takings-based theory is the needto demonstrate that his or her conviction and imprisonment appro-priated a property interest that state or federal eminent domainprinciples protect. Fortunately for the wrongfully convicted, manyjurisdictions have already held that governmental appropriations oflabor may give rise to a claim for compensation under state or fed-eral takings principles. Other jurisdictions have avoided reachingthe question by positing that government is not “taking” labor whenit is simply requiring performance of a civic duty already owed to it,but these jurisdictions have not decided the matter unfavorably towrongfully convicted individuals who are seeking relief.

1. Many Jurisdictions Have Already Held That Labor Is ProtectedUnder State or Federal Takings Clauses

Nine states and the United States Court of Appeals for the Dis-trict of Columbia Circuit have either explicitly held or strongly indi-cated in dicta that a governmental appropriation of labor canrequire just compensation under state or federal takings clauses.82

Carolyn Shelbourn, Compensation for Detention, 1978 CRIM. L. REV. 22, 24–5 (discuss-ing other nations’ practices of compensating individuals who were detained butnot convicted as well as those who were wrongfully convicted); Leipold, supra note4 (advocating for establishment of a process to enable acquitted defendants to Rprove their innocence and repair damage caused by false accusations of guilt).

82. The states that have explicitly held governmental appropriations of laborto be protected by state or federal takings clauses, absent a finding of duty, areAlaska: DeLisio v. Alaska Super. Ct., 740 P.2d 437, 440–41 (Alaska 1987); Arkansas:Arnold v. Kemp, 813 S.W.2d 770, 775 (Ark. 1991); Indiana: Sholes v. Sholes, 760N.E.2d 156, 163–64 (Ind. 2001); Kansas: State ex rel. Stephan v. Smith, 747 P.2d816, 842 (Kan. 1987) (“We conclude that attorneys’ services are property, and arethus subject to Fifth Amendment protection.”); Kentucky: Bradshaw v. Ball, 487S.W.2d 294, 298 (Ky. 1972) (“It is in the public interest that the administration ofcriminal justice proceed fairly, impartially, expeditiously and efficiently. There-fore, it appears elemental that the public interest in the enforcement of criminallaws and the constitutional right of the indigent defendant to counsel can be satis-fied only by requiring the state to furnish the indigent a competent attorney whoseservice does not unconstitutionally deprive him of his property without just com-pensation.”); Iowa: McNabb v. Osmundson, 315 N.W.2d 9, 16 (Iowa 1982) (con-cluding that, since 1850, Iowa has “held that [when a] statute required the court toappoint counsel and the lawyer in turn could not refuse to provide services, thelatter had a ‘right’ to reasonable compensation for those services. That right wasdescribed as ‘complete, without further legislative enactment,’ and a ‘fundamentalrule of right,’ foundationed on the constitutional mandate ‘that private propertyshall not be taken without just compensation.’” (quoting Hall v. WashingtonCounty, 2 Greene 473, 476, 478 (Iowa 1850))); Missouri: State ex rel. Scott v.

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These courts have done so in cases deciding that attorneys whohave been appointed by courts to represent indigent defendants incivil or criminal suits cannot be compelled to serve without justcompensation for their services.83

In Missouri, for example, the state in which Barbara Reaso-nover was convicted and wrongfully imprisoned for almost seven-teen years,84 the Supreme Court of Missouri held in State ex rel. Scottv. Roper that labor was protected by the takings clause of its stateconstitution.85 Rejecting claims made in an earlier federal case,United States v. Dillon, that a court could require a lawyer to servewithout compensation because of lawyers’ historic treatment as “of-ficers of the court,”86 the Roper court held instead that lawyers inthe United States historically were not subject to a duty to representindigent civil litigants without any compensation from the state.87

Nor, according to the court, did lawyers accept membership in thelegal profession subject to the condition that they serve as ap-pointed counsel free of charge when called upon to serve. Instead,the court found that “since the colonial period, a lawyer’s serviceshave been recognized as a protectable property interest. It wasnoted in 1812 that ‘[i]ndustry and faculties are most valuable prop-

Roper, 688 S.W.2d 757, 769 (Mo. 1985); Oklahoma: Bias v. State, 568 P.2d 1269,1272 (Okla. 1977) (concluding that forced provision of “extraordinary profes-sional services” to indigent clients without just compensation would take a lawyer’sprivate property); Utah: Bedford v. Salt Lake County, 447 P.2d 193, 195 (Utah1968) (“Until the legislature provides a method by which a lawyer can be paid forcompulsory services to an indigent person, a statute requiring such services is un-constitutional as requiring one to give services (a form of property) without justcompensation being paid therefor. It matters not that the service is to be renderedto one other than the state. It would still be an involuntary taking by the state.”).The D.C. Circuit concluded in dicta that excessive appropriation of lawyers’ laborwould amount to a taking of property without just compensation. See Family Div.Trial Lawyers v. Moultrie, 725 F.2d 695 (D.C. Cir. 1984), discussed infra, note 93and accompanying text.

83. Many states appear to have been influenced by David Shapiro’s article,The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. REV. 735, 771–77 (1980), whichargues that lawyers were not historically under a universal duty to serve withoutcompensation, and that therefore recovery may be available under eminent do-main principles for lawyers who are uniquely burdened by the imposition of re-quirements to provide legal services without pay. See, e.g., DeLisio, 740 P.2d at 440(citing to Professor Shapiro’s article); Roper, 688 S.W.2d at 764 (same).

84. See supra note 14 and accompanying text. R

85. Roper, 688 S.W.2d at 757.86. 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978 (1965).87. See Roper, 688 S.W.2d at 765–68 (citing Shapiro, supra note 83). R

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erty in a republic.’”88 Because the state constitution required justcompensation for appropriations of property and guaranteed “thatall persons have a natural right to . . . the enjoyment of the gains oftheir own industry,”89 the court concluded that lawyers could notbe required to represent indigent civil litigants without justcompensation.

In Alaska, the state’s high court concluded that lawyers couldnot be appointed to represent indigent criminal defendants with-out just compensation. The court, basing its holding on the takingsclause of the Alaska Constitution,90 concluded:

We see no language in our takings clause to indicate that ser-vices should be excluded from the section’s protections, andwe are unaware of any constitutional convention history indi-cating such exclusive intent. Consequently, we perceive noreasoned basis for excluding such services.Indeed, excluding personal services from the clause’s provi-sions is manifestly unreasonable. It has long been recognizedthat “labor is property. The laborer has the same right to sellhis labor, and to contract with reference thereto, as any otherproperty owner.”91

Federal courts have also stated in dicta that people may have acognizable property interest in their labor and that, under certainconditions, a governmental appropriation of labor may constitute ataking of property deserving of compensation. The United StatesSupreme Court indicated in Butler v. Perry, a 1916 case upholding astatute requiring that individuals work on public roads for severaldays each year without compensation, that “for some purposes la-bor must be considered as property.”92 In 1984, the United StatesCourt of Appeals for the District of Columbia Circuit, in Family Divi-sion Trial Lawyers v. Moultrie, stated that an especially burdensomecompulsory appointment may rise to the level of a taking: “while we

88. Roper, 688 S.W.2d at 768–69 (quoting Bynre v. Stewart, 3 Des. 466, 468(1812)).

89. MO. CONST. art. I § 2, quoted in Roper, 688 S.W.2d at 769.90. “Private property shall not be taken or damaged for public use without

just compensation.” ALASKA CONST. art. I, § 18.91. DeLisio v. Alaska Super. Ct., 740 P.2d 437, 440 (Alaska 1987) (quoting

Coffeyville Vitrified Brick & Tile Co. v. Perry, 76 P. 848, 850 (Kan. 1904)) (bracketsomitted).

92. 240 U.S. 328, 333 (1916) (upholding a statute requiring that individualswork on public roads for several days each year without compensation and statingthat: “Conceding for some purposes labor must be considered as property, it isevident from what already has been said that to require work on the public roadshas never been regarded as a deprivation of either liberty or property.”).

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agree with the district court that some pro bono requirements do notconstitute a ‘taking,’ we think it equally clear that an unreasonableamount of required uncompensated service might so qualify.”93

2. Understanding the “Civic Duty Rule”

Many jurisdictions, however, have not yet reached the questionof whether labor is protected by state or federal takings clauses.They take their cue from a line of appellate decisions that have al-lowed government to appropriate labor when it is asking for per-formance of a traditional or preexisting civic duty. Other casesestablish the principle that no takings occur when an individualloses property as punishment for violation of a civic duty, or is pre-vented from using his or her property in a manner that violates aduty towards others. These doctrines, which the Note collectivelyterms the “civic duty rule,” have limited the development of the lawgoverning takings of labor.

The Supreme Court has established that individuals possess anaffirmative civic duty to provide labor to government without beingentitled to compensation for the compulsory service. Earlier casesexamined the rule in the context of Thirteenth and FourteenthAmendment challenges to compulsory government service. In But-ler v. Perry, the Court relied on Blackstone and pre-Revolutionarypractice to conclude that individuals historically could be requiredto work on public roads without compensation.94 Historical prac-tice then led the Court to conclude that a Florida statute requiringthis form of labor did not violate the Thirteenth or FourteenthAmendments because “to require work on the public roads hasnever been regarded as a deprivation of either liberty or prop-erty.”95 In the Selective Draft Law Cases, the Court stated that “theexaction by government from the citizen of the performance of hissupreme and noble duty of contributing to the defense of the rightsand honor of the nation,” in this case, the wartime draft, could notbe unconstitutional.96 Other historically-required public duties, in-

93. 725 F.2d 695, 705 (D.C. Cir. 1984).94. 240 U.S. at 330 (“In view of ancient usage and the unanimity of judicial

opinion, it must be taken as settled that, unless restrained by some constitutionallimitation, a State has inherent power to require every able-bodied man within itsjurisdiction to labor for a reasonable time on public roads near his residence with-out direct compensation. This is a part of the duty which he owes to the public.The law of England is thus declared in Blackstone’s Commentaries . . . .”).

95. Id. at 333.96. 245 U.S. 366, 390 (1918).

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cluding jury service and night patrol, have also been upheld againstconstitutional challenge.97

The Supreme Court applied the civic duty rule to takingsclaims involving government appropriations of labor in a 1973 case,Hurtado v. United States.98 Hurtado represented a class of Mexicanimmigrant workers who had been imprisoned as material witnessesin trials of those who had illegally imported them into the country.These witnesses received only one dollar per day in statutory com-pensation for the duration of their confinement. They filed a classaction challenging their meager compensation as, inter alia, a viola-tion of their rights to property under the Fifth Amendment’s Tak-ings Clause by depriving them of their ability to earn income whilethey were in prison.99 The Hurtado Court rejected this claim on theground that, just as owners of real property could not obtain com-pensation under the Takings Clause for required expenditures inperformance of a duty owed to the state,100 an individual could notbe entitled to compensation for compelled performance of a preex-isting civic duty, no matter how burdensome it may be. Accordingto the Court, “the Fifth Amendment does not require that the Gov-ernment pay for the performance of a public duty it is alreadyowed.”101 Because the Court’s historical analysis led it to concludethat individuals traditionally could be compelled to serve as wit-nesses without compensation, it found that the Hurtado plaintiffscould not sustain a takings claim:

It is beyond dispute that there is in fact a public obligation toprovide evidence, and that this obligation persists no matterhow financially burdensome it may be. The financial losses suf-fered during pretrial detention are an extension of the bur-dens borne by every witness who testifies. The detention of a

97. See Evan R. Seamone, A Refreshing Jury COLA: Fulfilling the Duty to Compen-sate Jurors Adequately, 5 N.Y.U. J. LEGIS. & PUB. POL’Y 289, 323–29 (2002) (discussingother civic duties that courts had recognized in the past, including duties to serveon night patrol and assist with frontier defense); Andrea L. Peterson, The TakingsClause: In Search of Underlying Principles Part II— Takings as Intentional Deprivations ofProperty Without Moral Justification, 78 CAL. L. REV. 53, 131–40 (1990) (discussinggovernment appropriations of labor that have not historically given rise to takingsclaims).

98. 410 U.S. 578 (1973).99. Id. at 579.100. See Monongahela Bridge Co. v. United States, 216 U.S. 177, 193–94

(1910) (holding that the federal government did not have to compensate a bridgeowner who was required to make modifications to a bridge that was obstructingriver traffic because the bridge owner owed a duty to maintain the navigability ofthe river below), cited in Hurtado, 410 U.S. at 588–89.

101. Hurtado, 410 U.S. at 588.

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material witness, in short, is simply not a taking under the FifthAmendment, and the level of his compensation, therefore,does not, as such, present a constitutional question. It isclearly recognized that the giving of testimony and the attend-ance upon court or grand jury in order to testify are publicduties which every person within the jurisdiction of the Gov-ernment is bound to perform upon being properly sum-moned, and for performance of which he is entitled to nofurther compensation than that which the statutes provide.The personal sacrifice involved is a part of the necessary contri-bution of the individual to the welfare of the public.102

Reasoning similar to that of Hurtado has allowed a number ofjurisdictions to avoid addressing the scope of state or federal tak-ings clauses’ protection of labor in the context of mandatory provi-sion of legal services to the indigent, the only area of law in whichthe labor-takings concept has received sustained attention in recentyears. Many of these jurisdictions take their lead from the decisionof the Ninth Circuit in United States v. Dillon.103 The Dillon courtconcluded that lawyers have a civic duty to represent the indigentupon court appointment pursuant to the “ancient and establishedtradition” of provision of legal services without just compensa-tion.104 Since it determined that, even if labor were a form of prop-erty protected by the Takings Clause, governmental appropriationpursuant to a civic duty already owed the state did not constitute ataking, it did not actually decide whether labor was protected by thefederal Takings Clause: “Since we have arrived at the conclusionthat there was no ‘taking’, in the constitutional sense, of [Dillon’s]services, it is unnecessary for us to consider whether the servicesrendered by [Dillon] constitute ‘property’ within the meaning ofthat term as used in the Fifth Amendment.”105 Several jurisdic-tions, including Massachusetts106 and Nevada,107 have explicitly fol-lowed Dillon’s logic to avoid reaching the question of whether labor

102. Id. at 589 (internal citations, punctuation marks, and footnotesomitted).

103. 346 F.2d 633 (9th Cir. 1965).104. Id. at 635–36 (“Such decisions [granting attorneys Due Process rights in

their licenses] do not support [Dillon’s] claim that there has been a taking of hisservices without just compensation when he performs an obligation imposed uponhim by the ancient traditions of his profession and as an officer assisting the courtsin the administration of justice.”).

105. Id. at 636.106. Abodeely v. County of Worcester, 227 N.E.2d 486, 489 (Mass. 1967).107. Daines v. Markoff, 555 P.2d 490, 493 (Nev. 1976).

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is protected by state or federal takings clauses and to conclude thatlawyers owe a duty to serve without compensation.

Few scholars have attempted to understand the rationale forthe civic duty rule.108 Only a 1990 article by Andrea Peterson offersa compelling account of the rule, explaining that the Court’s tak-ings jurisprudence as a whole could be understood as requiringcompensation only when government deprives individuals of theirproperty without moral justification.109 Professor Peterson analo-gizes between cases authorizing uncompensated government ap-propriations of labor and cases that have upheld broad taxationschemes, even when the schemes might be burdensome to the indi-vidual or business being taxed.110 Professor Peterson’s analysis oftaxation cases in turn leads her to explore why takings challengescannot generally be brought against broad taxation schemes. Sheconcludes universal obligations such as taxation do not implicatethe Takings Clause because they reflect the community’s moraljudgment that every citizen ought to pay his or her “fair share” tosupport a program that benefits the community as a whole:

Ordinarily, we do not consider it wrong of someone not to con-tribute money to be spent for the benefit of third parties. Yet ifwe view [a citizen] as a member of the political community,and if a decision has been made by that political community tocarry out a governmental program that benefits third parties,then we consider it wrong of [the citizen] not to pay her fairshare to fund that program.111

108. See, e.g., Gary Lawson & Guy Seidman, Taking Notes: Subpoenas and JustCompensation, 66 U. CHI. L. REV. 1081, 1096–97 (1999) (arguing that the civic dutyanalysis applies only to appropriations of labor but questioning its logic).

109. See Peterson, supra note 97, at 131–40. R110. Id. (arguing that the “civic obligations” justification for appropriating

both labor and taxes are justifiable by reference to the universality of the require-ments). Broad taxation schemes have been upheld against takings challenges atleast since R.R. Co. v. County of Otoe, 83 U.S. 667, 674 (1872), which stated: “But theclause prohibiting taking private property for public use without just compensa-tion has no reference to taxation. If it has, then all taxation is forbidden, for ‘justcompensation’ means pecuniary recompense to the person whose property istaken equivalent in value to the property.” But cf. RICHARD A. EPSTEIN, TAKINGS:PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 295–303 (1985) (arguingthat taxes that are intended to redistribute wealth rather than to impose generalobligations on the public effect an impermissible taking of private property with-out just compensation).

111. Peterson, supra note 97, at 133; see also E. Enters. v. Apfel, 524 U.S. 498, R555–56 (1998) (Breyer, J., dissenting) (arguing that the Takings Clause does notapply to “the creation of a general liability”). Robert Brauneis also points out thatbroad taxation is necessary as a practical matter to enable payment of takingsclaims. See Robert Brauneis, Eastern Enterprises, Phillips, Money, and the Limited

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Peterson’s account of the civic obligations shaping takings doc-trine also explains why individuals may be compelled to refrainfrom particular uses of labor or may have their labor appropriatedas punishment for a crime without being entitled to compensation.Peterson finds that civic duties to refrain from engaging in uses ofproperty that effect a nuisance or to which individuals are not tradi-tionally entitled may be enforced without invoking the TakingsClause.112 According to the Court in Lucas v. South Carolina CoastalCouncil, decided soon after Peterson wrote her article:

In light of our traditional resort to “existing rules or under-standings that stem from an independent source such as statelaw” to define the range of interests that qualify for protectionas “property” under the Fifth and Fourteenth Amendments,this recognition that the Takings Clause does not require com-pensation when an owner is barred from putting land to a usethat is proscribed by those “existing rules or understandings” issurely unexceptional.113

The “existing rules or understandings” barring individuals fromputting their property to particular uses are forms of civic duties, asreliant on historical practices for their legitimacy as the affirmativecivic duties cited in cases such as Hurtado as a justification for per-mitting government to extract essentially uncompensated servicesfrom individuals.

Role of the Just Compensation Clause in Protecting Property “in its Larger and Juster Mean-ing”, 51 ALA. L. REV. 937, 945 n.40 (2000). Brauneis wrote:

[I]t might be argued that the Just Compensation Clause assumes the practiceof taxation, for where else, practically speaking, is a government going to getthe funds to pay just compensation awards? Thus, when the Armstrong Courtstates that the Clause’s purpose is to prevent the government ‘from forcingsome people alone to bear public burdens which, in all fairness and justice,should be borne by the public as a whole,’ it surely has in mind taxation as themechanism by which the public burden will be placed on the shoulders of thepublic as a whole.

Id. (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).112. Peterson, supra note 97, at 133 (“For example, if the government prohib- R

its A from using her land in a manner that would seriously harm surroundingresidents, the government is preventing A from engaging in behavior that is con-sidered blameworthy wholly apart from the notion that A has certain obligations asa citizen.”).

113. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1030 (1992)(quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)) (internal citationsomitted).

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3. The Civic Duty Rule Does Not Bar Compensation for theWrongfully Convicted

What could be considered a third form of the civic duty ruleallows government to punish an individual by taking his or herproperty as a punishment for violating a civic duty without incur-ring takings liability.114 One scholar has phrased the requirementanother way: individuals may have an affirmative duty to submit topunishments such as fines and imprisonment for committing acrime.115

But there is no theory establishing an affirmative civic duty tosubmit to punishment for a crime that one did not commit. Aninnocent person who has committed no wrong has no such duty tobe punished, just as a citizen who has done no wrong has no affirm-ative duty to subject her property to uncompensated governmentappropriation.116 Moreover, there is no historical tradition con-cluding that individuals are subject to a civic duty to submit towrongful conviction; unjustified imprisonment is not like jury dutyor military service in this regard.

There still may be circumstances under which individuals whowere wrongfully convicted could be held to have violated a duty thatjustifies some level of punishment. States that have established stat-utory schemes providing recovery to the wrongfully convicted, forexample, have determined that wrongfully convicted individualsshould not be entitled to recovery when their conviction was due totheir own improper acts (e.g., perjury or commission of anotherunpunished offense).117 But absent evidence that a wrongfully con-

114. See Peterson, supra note 97, at 114–15 ( “[T]he takings cases can best be Rexplained by focusing on whether the lawmakers were seeking to prevent or pun-ish conduct that they reasonably believed the people of that jurisdiction at thattime would consider wrongful.”).

115. See JACOB ADLER, THE URGINGS OF CONSCIENCE: A THEORY OF PUNISHMENT

(1991) (concluding that guilty individuals have an affirmative duty to submit topunishment).

116. See id. at 38 (“If a state that aspires to minimal legitimacy proposes tomake systematic use of any but the most innocuous punishments, it must show thatthose subjected to the punishments have a moral obligation to submit to them. . . .”), 111–12 (“Punishment imposed by others upon the punishee must there-fore involve treatment that would usually be wrong or unjust if imposed upon theinnocent.”); cf. infra Part II.B.1.b (discussing cases concluding that governmentmust under the Due Process clause return fines paid by wrongfully convictedindividuals).

117. See, e.g., N.Y. CT. CL. ACT § 8-b(5)(d) (2003) (requiring a wrongfullyconvicted individual to demonstrate that “he did not by his own conduct cause orbring about his conviction” in order to recover under the state’s compensationscheme).

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victed individual’s violation of a civic duty brought about his or herwrongful conviction, the civic duty rule should not prevent thewrongfully convicted from making a successful takings claim. If thecivic duty rule does not apply, then Hurtado, Dillon, and relatedcases cannot be used by jurisdictions that have not yet assessedwhether labor can be protected under takings principles to avoidconsideration of this difficult issue.

4. Arguing that Labor Is Protected Under Takings Principles

Jurisdictions considering for the first time whether labor is pro-tected under state or federal takings clauses will need to under-stand the contested nature of claims regarding the nature of labor,the rights inhering in an individual’s labor, and the legitimacy ofarguments that labor ought to be treated as a form of property thatcannot be taken without just compensation.

The most basic argument in favor of applying takings claims togovernment appropriations of labor relies on the soundness of rea-soning in jurisdictions that have already concluded that labor isprotected under takings principles. Nothing other than substantivedifferences in jurisdictions’ beliefs about lawyers’ civic duties toserve without pay grounds the distinction between jurisdictions thathave found labor to be protected under state or federal takingsprinciples and those that have not yet reached this question.118

Furthermore, if the Supreme Court is prepared to grant takingsprotection to some forms of intangible property, one could arguethat courts should also grant this protection to labor under emi-

118. See supra Part II.A.1 (discussing the jurisdictions that have already con-cluded that labor is protected under state or federal takings clauses). With theexception of Indiana’s and Arkansas’s constitutions, which have especially strongtakings provisions, see IND. CONST. art. I, § 21 (“[N]o person’s particular servicesshall be demanded, without just compensation.”); ARK. CONST. art. II, § 22 (“Theright of property is before and higher than any constitutional sanction; and privateproperty shall not be taken, appropriated or damaged for public use, without justcompensation therefor.”), the takings clauses upon which the jurisdictions findinglabor to be protected relied contain language similar or identical to the federalTakings Clause. See, e.g., IOWA CONST. art. I, § 18 (“Private property shall not betaken for public use without just compensation first being made, or secured to bemade to the owner thereof . . . .”). Kansas has concluded that labor is protected bythe Fifth Amendment to the United States Constitution. See State ex rel. Stephan v.Smith, 747 P.2d 816 (Kan. 1987). The District of Columbia Circuit, of course,relied on the federal Takings Clause in Family Division Trial Lawyers v. Moultrie, 725F.2d 695, 705–06 (D.C. Cir. 1984), to argue in dicta that an “unreasonable”amount of uncompensated service requirements would give rise to a valid takingsclaim.

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nent domain principles.119 The advocate for compensation mustnote, however, that the uncertain intersection between state andfederal law on the subject of property interests may complicate ef-forts to argue that the federal Takings Clause, rather than individ-ual states’ eminent domain clauses, requires compensation for astate-defined and state-protected property interest.120

But for courts not persuaded by legal arguments regarding theconstitutional protections that ought to be accorded to labor, onemust address likely questions about the nature of labor andwhether the treatment of labor as a form of property is conceptuallycoherent, historically sound, and prudent. This Note adopts apragmatic approach to addressing the question, believing that Mar-garet Jane Radin was correct in contending that labor is subject to“incomplete commodification,” in the sense that there are aspectsof labor that inherently cannot be bought or sold (e.g., labor neces-sary for self-preservation), and other forms of labor that should not

119. See Ruckleshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984). The courtwrote:

Although this Court never has squarely addressed the question whether a per-son can have a property interest in a trade secret, which is admittedly intangi-ble, the Court has found other kinds of intangible interests to be property forpurposes of the Fifth Amendment’s Taking Clause. That intangible propertyrights protected by state law are deserving of the protection of the TakingClause has long been implicit in the thinking of this Court.

Id.; see also McUsic, supra note 77, at 608–09 (1998) (arguing that intangible prop-erty is as deserving of protection under the Takings Clause as tangible property).

120. See Monsanto, 467 U.S. at 1001 (concluding that intangible property in-terests, like other property interests, “ ‘are not created by the Constitution. Rather,they are created and their dimensions are defined by existing rules or understand-ings that stem from an independent source such as state law.’”) (quoting Webb’sFabulous Pharmacies, Inc. v. Beckwith, 499 U.S. 155 (1980)) (brackets in original).Yet state constitutions may independently expansively define substantive defini-tions of property. William J. Brennan, Jr., State Constitutions and the Protection ofIndividual Rights, 90 HARV. L. REV. 489, 491 (1977) (“State constitutions, too, are afont of individual liberties, their protections often extending beyond those re-quired by the Supreme Court’s interpretation of federal law.”). This leaves federallaw in what some scholars have called a “positivist trap,” in which the scope of thefederal Takings Clause’s protections is defined solely by reference to principlesoutside the federal Constitution itself. See Thomas W. Merrill, The Landscape ofConstitutional Property, 86 VA. L. REV. 885, 934–42 (2000) (discussing the complica-tions in federal takings jurisprudence caused by the “positivist trap” and arguingfor a more independent definition of property interests protected by the federalTakings Clause). The “positivist trap” may cause problems if states recognize laboras property for some purposes but conclude that it is not deserving of protectionunder eminent domain principles. Courts interpreting federal law would thenhave difficulty separating states’ definition of property rights from the protectionsthat states choose to attach to those rights.

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in a civilized society be bought or sold (e.g., selling babies for hire),even while productive wage labor by individuals with capacity to selltheir labor is legitimately treated as a form of property to be boughtand sold in regulated markets.121

The position that labor is at least partly property may be deeplyunsatisfactory to those philosophers and legal theorists who believethat labor, by its nature, cannot possess the attributes of property122

or who claim that the “plain meaning” of the word “property” ex-cludes labor.123 The treatment of labor as property may also dis-

121. See MARGARET JANE RADIN, CONTESTED COMMODITIES 104–110 (1996);Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1918–19 (1987)(“Work and housing are possible examples of incomplete commodification. . . .Although work has not been fully decommodified, it is incompletely commodifiedthrough collective bargaining, minimum wage requirements, maximum hour limi-tations, health and safety requirements, unemployment insurance, retirement ben-efits, prohibition of child labor, and antidiscrimination requirements.”).

122. See, e.g., J.P. Day, Locke on Property, 16 PHIL. Q. 207 (1966) (mounting anextended argument that labor cannot be property because it is an activity ratherthan a thing); J.E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. REV.711, 753 (1996) (“To believe that a contract conceptually requires the exchange ofproperty rights necessitates treating all beneficial relations, whether in personamor in rem, as species of property. This leads to all kinds of absurdities, like treatingone’s labor as something one owns.”); Alan Ryan, Self-Ownership, Autonomy, andProperty Rights, in LOCKE’S MORAL, POLITICAL, AND LEGAL PHILOSOPHY 241 (J.R.Milton ed., 1999) (arguing that Locke’s treatment of labor as a form of propertycannot be taken seriously as a claim that labor ought to be vested with rights ac-corded to other forms of property).

123. Richard Epstein is a primary exponent of this position. His position onthe availability of the Takings Clause to remedy governmental appropriations oflabor, however, is curious and more than a little ironic, given his reliance on Lock-ean principles elsewhere in his work. Professor Epstein claims to argue that theConstitution and the Takings Clause are based on Lockean principles. See EPSTEIN,supra note 110, at 7–18 (quoting LOCKE, supra note 74, at ¶ 27 (“every man has a Rproperty in his own person”) and asserting that the Lockean position “forms oneof the pillars of the subsequent analysis in this book”). But Epstein then relies onBlackstone, rather than Locke, for the “ordinary meaning” of the term “property.”See id. at 23 ( “Blackstone’s account of private property explains what the termmeans in the eminent domain clause.”). Blackstone famously defined property as“that sole and despotic dominion which one man claims and exercises over theexternal things of the world, in total exclusion of the right of any other individualin the universe.” See id. at 22 (quoting 2 BLACKSTONE, COMMENTARIES 2 (1794)).

Epstein then uses the Blackstonian definition of property to draw a distinctionbetween property and labor, arguing that

restrictions on hours or wages are without question limitations on the powerof the employer to dispose of property. The claim of the employee, ironically,might not fit under the eminent domain clause because the restrictions areupon his right to dispose of his labor, not property. Yet the employee is alsosharply limited in his right to acquire property by the use of his labor. It ispossible, if unlikely, that the liberty interests in personal services are covered

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turb normative theorists who are concerned that treating labor as acommodity will harm laborers’ efforts to equalize bargaining powerwith employers, fail to address fundamental imbalances in powerbetween laborers and capitalists,124 or dehumanize social interac-tions involving labor.125

This Note acknowledges that many of these theorists’ argu-ments have merit. But once these claims are considered, law andcontemporary practice remain favorable to the treatment of at leastan individual’s productive labor as a property interest, the rightswhich inhere in the individual laborer. Of course, legal rules treat-ing productive labor as the laborer’s own property interest can beabused by those seeking to deregulate the labor market and takeadvantage of competition among laborers for work,126 and a

by the eminent domain clause as well, since they routinely were covered by theprinciple of freedom of contract . . . .

EPSTEIN, supra note 110, at 280. Thus, Epstein’s half-hearted reliance on RLocke enables him to determine that the Takings Clause (as opposed to otherconstitutional provisions) does not protect laborers from uncompensated govern-ment appropriation.

124. See, e.g., James G. Pope, Labor and the Constitution: From Abolition toDeindustrialization, 65 TEX. L. REV. 1071 (1987) (arguing that Lochner-era theorytreating labor as a commodity has created a “Labor Black Hole” in the Constitu-tion, preventing courts from protecting workers’ rights). P.J. Proudhon, the social-ist property theorist, stated the argument in the following manner: “To tell a poorman that he HAS property because he HAS arms and legs . . . is to play uponwords, and to add insult to injury.” PIERRE JOSEPH PROUDHON, WHAT IS PROPERTY?61 (Benj. R. Tucker trans., Howard Fertig ed. 1966). Further discussion of socialisttheories’ treatment of labor is, unfortunately, beyond the scope of this Note.

125. See, e.g., JOSEPH WILLIAM SINGER, ENTITLEMENT 95–139 (2000).126. The infamous Lochner v. New York, 198 U.S. 45 (1905), which struck

down a maximum-hour law on the ground that it interfered with laborers’ (andemployers’) constitutionally-guaranteed “liberty of contract,” demonstrates theabuse to which valorized “free labor” could be subjected. See id. at 57. The Courtwrote:

There is no reasonable ground for interfering with the liberty of person or theright of free contract, by determining the hours of labor, in the occupation ofa baker. There is no contention that bakers as a class are not equal in intelli-gence and capacity to men in other trades or manual occupations, or that theyare not able to assert their rights and care for themselves without the protect-ing arm of the State, interfering with their independence of judgment and ofaction. They are in no sense wards of the State.

Id. The argument that labor is owned by the laborer and cannot be taken withoutjust compensation should not be equated with Lochnerism, however; the Lochnerline of cases was objectionable because it prevented beneficial labor regulationsfrom surviving constitutional scrutiny, not because it recognized a self-ownershipprinciple.

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labor market that commodifies too much can dehumanize indi-viduals.127

Yet granting individuals property rights in their labor can alsodo much good, not only for the wrongfully convicted but also forothers whose labor was wrongfully appropriated or who are depen-dent on labor as their sole source of financial support. For exam-ple, people enslaved by German businesses during the Holocaustsuccessfully settled suits seeking compensation under an unjust en-richment theory. The Holocaust slave labor plaintiffs’ theory ofdamages explicitly treated the slaves’ labor as the property of valuethat was unjustly appropriated by the slaveowning businesses.128

The importance of earnings from labor to personal wealth has mo-tivated many states to consider enhanced earning capacity obtainedduring marriage to be a form of marital property subject to divisionat divorce.129

Courts may also give weight to the principle’s historical legiti-macy when deciding whether wrongfully convicted individuals pos-sess property rights in their labor. The notion that an individualhas a property right in his or her labor found its origin in JohnLocke’s influential theory of government. Locke argued that“[t]hough the earth and all inferior creatures be common to all

127. See Radin, Market-Inalienability, supra note 121, at 1921 (“[I]ncomplete Rcommodifications can be seen as responses in our nonideal world to the harm topersonhood caused by complete commodification of work.”).

128. See Burt Neuborne, Holocaust Reparations Litigation: Lessons for the SlaveryReparations Movement, 58 N.Y.U. ANN. SURV. AM. L. 615, 617–18 (2003) (explainingthe unjust enrichment basis for the slave laborers’ claims); Anthony J. Sebok, Repa-rations, Unjust Enrichment, and the Importance of Knowing the Difference Between the Two,58 N.Y.U. ANN. SURV. AM. L. 651, 656–57 (2003) (discussing the use by slaveryreparations advocates of unjust enrichment claims treating slave labor as propertythat was not properly paid for, and expressing concern about the moral implica-tions of these claims).

129. See, e.g., O’Brien v. O’Brien, 489 N.E.2d 712, 717–18 (N.Y. 1985) (hold-ing that enhanced earning capacity due to a license obtained during marriageconstitutes marital property); Lesli F. Burns & Gregg A. Grauer, Human Capital asMarital Property, 19 HOFSTRA L. REV. 499 (1990) (exploring O’Brien, paths taken byother states, and potential solutions to residual problems with O’Brien). Use ofhuman capital in the form of increased earning capacity as a form of marital prop-erty reflects the importance of wage labor as a creator of wealth. Wages from laborprovide the most important source of revenue for United States taxpayers, ac-counting for over 70% of all income reported to the IRS. See Internal RevenueService, 1999 Individual Income Tax Returns, Table A: Selected Income and Tax Items forSelected Years, 1995 to 1999, http://www.irs.gov/pub/irs-soi/99intba.pdf (last visitedMar. 2, 2004) (stating that in 1999, taxpayers reported over $4.1 trillion in wagesand salaries to the IRS, while they reported $1.8 trillion in net other sources ofincome).

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men, yet every man has a ‘property’ in his own ‘person’. This no-body has any right to but himself. The ‘labour’ of his body and thework of his hands, we may say, are properly his.”130 The leaders ofthe Revolutionary era,131 the abolitionist movement,132 and thepost-Civil War and contemporary Supreme Courts133 all invoked

130. LOCKE, supra note 74, at 130. R131. Intellectual historians have found strong reference to Lockean princi-

ples in the work of the Framers and the rhetoric of the Constitution. See JEROME

HUYLER, LOCKE IN AMERICA: THE MORAL PHILOSOPHY OF THE FOUNDING ERA (1995),for a discussion of Locke’s profound influence on the Founders. Advocates forgranting property rights in labor and personhood also cite Madison’s 1792 essay,Property and Liberty, which suggests an expansive definition of property that in-cludes individual capabilities as well as the labor based on those capabilities:

In a word, as a man is said to have a right to his property, he may be equallysaid to have a property in his rights. . . . If there be a government then whichprides itself in maintaining the inviolability of property; which provides thatnone shall be taken directly even for public use without indemnification tothe owner, and yet directly violates the property which individuals have intheir opinions, their religion, their persons, and their faculties; nay more,which indirectly violates their property, in their actual possessions, in the laborthat acquires their daily subsistence, and in the hallowed remnant of time whichought to relieve their fatigues and soothe their cares, the influence will havebeen anticipated, that such a government is not a pattern for the UnitedStates.

JAMES MADISON, Property and Liberty, in THE COMPLETE MADISON 267–69 (Saul K.Padover ed., 1953) (emphasis altered). Jennifer Nedelsky has argued that, seen inthe context of Federalist No. 10, which focuses on protections for individuals’ abilityto obtain property in light of their differing abilities, and Madison’s other work,his inclusion of labor as a form of property worthy of protection should be seen asanomalous. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN

CONSTITUTIONALISM 28–30 (1990). But other scholars have argued that the Foun-ders’ use of the term “property” as it appears in the Takings Clause and otherconstitutional provisions reasonably could have referred to rights to intangiblessuch as labor rather than simply land and chattels. See Laura S. Underkuffler, OnProperty: An Essay, 100 YALE L.J. 127, 135–37 (1990) (discussing how in the Found-ing Era, property in its “broader sense” included intangible rights, including rightsto labor); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776–1787,at 219 (1969) (“Eighteenth-century [American] Whiggism . . . made no rigid dis-tinction between people and property. Property [was] defined not simply as mate-rial possessions but . . . as the attributes of a man’s personality that gave him apolitical character. . . . Property was not set in opposition to individual rights butwas of a piece with them.”) (quoted in Underkuffler, supra, at 137 n.53).

132. See AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR, MAR-

RIAGE, AND THE MARKET IN THE AGE OF SLAVE EMANCIPATION 20–22 (1998) (arguingthat “[l]egitimating wage labor was a central part of the abolitionist project” andquoting abolitionist Theodore Weld’s 1838 assertion that “SELF-RIGHT is thefoundation right—the post in the middle, to which all other rights are fastened”).

133. The post-Civil War Court drew heavily on Lockean principles to arguethat government regulation of labor violated laborers’ constitutional rights. Jus-tice Field’s famous Slaughterhouse Cases dissent, for example, quotes Adam Smith’s

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Lockean self-ownership principles to justify their claims. While wenow live in an era in which labor is subject to heavy regulation, coreelements of the Lockean self-ownership principle remain firmly em-bedded in contemporary law and practice.

B. Applying the Takings-Based Analysis toGovernmental Appropriations of the Wrongfully Convicted’s Labor

If a wrongfully convicted individual is able to persuade a juris-diction to agree, at least in principle, that a governmental appropri-ation of labor not covered by the civic duty rule may give rise to atakings claim, she must still convince the jurisdiction that wrongfulconviction and imprisonment effected a taking or otherwise gaverise to a government obligation to compensate. The following sec-tion focuses on three considerations that might affect the wrong-fully convicted individual’s ability to recover even if anotherindividual who was compelled to serve government, e.g., a lawyerproviding services without pay, could secure a takings award. First,while the government intentionally appropriates the labor of theattorney for clear public purposes, the government originally ap-propriates the wrongfully convicted’s labor to execute a punish-ment that later turns out to be erroneous. This distinction mayallow opponents of compensation to argue that state or federal tak-ings clauses do not require erroneous appropriations of property tobe compensated, though case law and commentary suggest that thisdistinction may be irrelevant under takings or due process princi-ples. Second, while the attorney’s labor is only partly appropriatedwhen he or she is forced to serve a client, the wrongfully convictedindividual’s labor is wholly appropriated by incarceration. This dis-

Wealth of Nations to claim that governmental restrictions on the location of slaugh-terhouses and the butchering profession were unconstitutional:

The property which every man has in his own labour, as it is the original foun-dation of all other property, so it is the most sacred and inviolable. The patri-mony of the poor man lies in the strength and dexterity of his hands; and tohinder him from employing this strength and dexterity in what manner hethinks proper, without injury to his neighbour, is a plain violation of this mostsacred property. It is a manifest encroachment upon the just liberty both ofthe workman, and of those who might be disposed to employ him. As it hin-ders the one from working at what he thinks proper, so it hinders the othersfrom employing whom they think proper.

ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NA-

TIONS, Book 1, ch. 10 (R. H. Campbell & A.S. Skinner eds., 1976) (quoted in TheSlaughterhouse Cases, 83 U.S. 36, 110 (1872) (Field, J., dissenting)). For an exampleof a contemporary case that cites Locke for the proposition that rights to libertyand property are interdependent, see, e.g., Lynch v. Household Fin. Corp., 405U.S. 538, 552 (1972).

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tinction should bolster arguments that a taking occurred as a resultof imprisonment, even if a lawyer who is compelled to spend a smallpart of her productive labor serving the public is not deserving ofcompensation. Third, the government obtains a tangible benefitfrom the attorney who is serving the indigent for which it wouldneed to pay if it could not order uncompensated service, while gov-ernment does not generally obtain financially measurable benefitsfrom the wrongfully convicted. While this distinction seems intui-tively powerful, the Court’s recent takings jurisprudence makesclear that the measure of damages in a takings claim is the loss tothe injured individual, not the amount by which the governmentgained from the appropriation. This section also briefly examineswhether the Thirteenth Amendment’s authorization of involuntaryservitude by those “duly convicted” affects the availability of reliefand concludes that the Amendment should not bar recovery ifother preconditions for a takings claim are met.

1. The Role of Error in the Availability of Relief

a. Responding to Arguments that Takings Remedies Might NotBe Available for Erroneous Appropriations of Property

Several scholars have claimed that an unauthorized or errone-ous appropriation of property should not be compensable undertakings jurisprudence, though it may be actionable under anotherconstitutional or statutory provision.134 This argument rests on lan-guage contained in concurrences and dissents in recent SupremeCourt cases suggesting that some members of the Court would notallow individuals to bring a takings claim for an unauthorized ap-propriation of property,135 as well as on a nineteenth-century Su-preme Court case holding that the Court of Claims lackedjurisdiction over claims for damages caused by unauthorized wrong-ful acts by government officials that would otherwise sound intort.136

134. See John D. Echeverria, Takings and Errors, 51 ALA. L. REV. 1047, 1048(2000) (arguing that a compensable taking cannot be caused by government con-duct that constitutes “any type of illegality”); Matthew Zinn, Note, Ultra Vires Tak-ings, 97 MICH. L. REV. 245 (1998) (arguing that appropriations made bygovernmental officials without authorization should not be compensable underthe Takings Clause). But see Richard H. Seamon, An Analysis of Jurisdictional IssuesArising From Eastern Enterprises v. Apfel, 51 ALA. L. REV. 1239, 1256–58 (2000)(arguing that unconstitutional government conduct can cause a taking).

135. See Echeverria, supra note 134, at 1058–64 (discussing cases suggesting Rthat the Takings Clause does not provide the appropriate vehicle for evaluatingunauthorized or illegal government acts).

136. See Schillinger v. United States, 155 U.S. 163, 168 (1894):

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But the Supreme Court and the weight of scholarly commen-tary appear to have concluded that erroneous appropriations ofproperty can give rise to takings claims. First, several decisions andscholarly analyses of takings law suggest that the law in fact supportsrecovery under a takings-based theory for deliberate governmentactions that are subsequently judged to be illegal or unconstitu-tional.137 Second, the Supreme Court recently concluded in City ofMonterey v. Del Monte Dunes, Ltd., that an inverse condemnation suitcould be brought under Section 1983 as a claim asserting a tortiousgovernmental failure to pay for property it appropriated: “Whenthe government repudiates this duty [to pay just compensation],either by denying just compensation in fact or by refusing to pro-vide procedures through which compensation may be sought, it vio-lates the Constitution. In those circumstances the government’sactions are not only unconstitutional but unlawful and tortious aswell.”138 The Court’s willingness to conclude that wrongful govern-ment acts may give rise to takings claims suggests that the mere factof a conviction’s erroneousness should not prevent the wrongfullyconvicted from obtaining takings-based relief.

This prohibition of the taking of private property for public use without com-pensation is no more sacred than that other constitutional provision that noperson shall be deprived of life, liberty, or property without due process oflaw. Can it be that congress intended that every wrongful arrest and deten-tion of an individual, or seizure of his property by an officer of the govern-ment, should expose it to an action for damages in the court of claims? If anysuch breadth of jurisdiction was contemplated, language which had alreadybeen given a restrictive meaning would have been carefully avoided.

137. See Seamon, supra note 134, at 1258. Seamon writes: RIf an official violates statutory limits on his or her authority, the official’s ac-tion cannot support a takings claim. If the official acts within the generalscope of his or her statutory authority, his or her actions can support a takingsclaim, even if they are unconstitutional. Likewise, an Act of Congress thatcauses a taking of private property for public use triggers an obligation to payjust compensation, even if the Act violates some other constitutionalprovision.

Id. Some have argued that the test articulated in Agins v. Tiburon, 447 U.S. 255,260 (1980), that a government action “effects a taking if [it] does not substantiallyadvance legitimate state interests,” can be understood as an implicit indication thatan improper government act that appropriates property can be considered a tak-ing. See Echeverria, supra note 134, at 1073–74 (discussing this argument). For Rexample, a relatively recent takings claim by Japanese-Americans whose propertywas appropriated in the World War II-era forced relocation, which was held at thetime to be justified but that was ultimately denounced, was held to state a claim forrelief but was ultimately barred by the statute of limitations governing takingsclaims against the federal government. See Hohri v. United States, 586 F. Supp.769 (D.D.C. 1984), aff’d, 847 F.2d 779 (Fed. Cir. 1988).

138. 526 U.S. 687, 717 (1999).

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b. Federal Due Process Principles May Also Require Relief forErroneous Appropriations of Property

Advocates for compensation could also resort to another con-stitutional source of claims for compensation if the takings remedyis held to be unavailable for claims of erroneous appropriation ofproperty interests. The Supreme Court has consistently held thatthe Due Process Clause of the Fourteenth Amendment requiresstates to be amenable to claims by those who assert that they wereerroneously assessed taxes, even though states would otherwise beable to claim sovereign immunity from suit for damages.139 Courtshave applied this due process principle directly to claims broughtby wrongfully convicted individuals in cases holding that wrongfullyassessed fines must be returned by the government, an influentialdecision concluding:

The Fifth Amendment prohibition against the taking of one’sproperty without due process of law demands no less than thefull restitution of a fine that was levied pursuant to a convictionbased on an unconstitutional law. Fairness and equity compelthis result, and a citizen has the right to expect as much fromhis government, notwithstanding the fact that the governmentand the court were proceeding in good faith at the time ofprosecution.140

If prisoners’ labor is also held to be a form of property that waserroneously appropriated, then due process principles should alsorequire restitution of the value of that appropriation.141

139. Ward v. Bd. of County Comm’rs., 253 U.S. 17 (1920), introduced the princi-ple that the Constitution commands provision of reasonable procedures to allowindividuals to obtain restitution of improperly extracted taxes. See id. at 24 (quot-ing Marsh v. Fulton County, 77 U.S. 676, 684 (1870)). Reich v. Collins, 513 U.S.106, (1994), held that the Due Process Clause overcame state claims of sovereignimmunity from suit for recovery of taxes paid in circumstances in which the taxeswere extracted by compulsion. See id. at 109–10.

140. United States v. Lewis, 342 F. Supp. 833, 836 (E.D. La. 1972) aff’d, 478F.2d 835 (5th Cir. 1973); accord State v. Superior Court, 40 P.3d 1239 (Alaska Ct.App. 2002) (relying on Lewis to conclude that Due Process principles require com-pensation when a fine is wrongfully collected); Ex parte McCurley, 412 So. 2d 1236(Ala. 1982) (same); People v. Nance, 542 N.W.2d 358, 359 (Mich. Ct. App. 1995),appeal denied, 554 N.W.2d 899 (Mich. 1996) (same).

141. Opponents of compensation could assert that the type of property inter-est represented by a wrongfully convicted person’s labor is different enough fromtangible property or cash to render it undeserving of compensation under DueProcess principles. In Alden v. Maine, 527 U.S. 706 (1999), the Court held that astate court was protected by sovereign immunity from hearing a federal claim forstate employees’ overtime wages based on the Fair Labor Standards Act, eventhough the state had apparently obtained an unjust benefit from its employees by

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2. Degree to which the Wrongfully Convicted’s Labor is Appropriated

Takings jurisprudence recognizes a clear distinction betweengovernmental acts that physically appropriate property and actsthat regulate property and restrict its use or require a portion of itto be dedicated to public uses.142 While a complete physical appro-priation of property by government will almost always give rise to avalid takings claim under Loretto’s per se rule that permanent physi-cal occupation by the government effects a taking,143 a governmen-tal effort to regulate property will not always effect a taking unless itdenies the owner of the property all economically viable use of theproperty.144 Governmental regulations that deprive the owner ofproperty of some economically beneficial use of the property mayor may not be considered takings based on a multi-factor test that

compelling overtime for which it did not pay statutorily required compensation. Itsought to explain away Reich by saying that “[In the Reich] context, due processrequires the State to provide the remedy it has promised. The obligation arisesfrom the Constitution itself; Reich does not speak to the power of Congress to sub-ject States to suits in their own courts.” Id. at 740 (internal citations omitted). Butthis statement then prompts the question: why should Reich be read to apply onlyto restitution of taxes wrongfully paid and not to restitution of other things ofvalue wrongfully appropriated by the state? The seeming anomaly has been ex-plained by some scholars as a result of the distinction between the statutory basis ofthe right to overtime in Alden (making it a “new property” right) and the right tocapital not collected pursuant to a valid tax scheme (an “old property” right). See,e.g., Ann Woolhandler, Old Property, New Property, and Sovereign Immunity, 75 NOTRE

DAME L. REV. 919, 933–35 (2000) (arguing that the new property/old propertydistinction may provide an explanation for the Court’s limitation of the Reich con-stitutional remedy). Even if this distinction is relevant, property rights in laborcannot be considered a “new” property right in light of the principle’s historicorigins, see supra Part II.A.4. Therefore the erroneous uncompensated appropria-tion of labor could not be considered purely a statutory violation of the type suf-fered by the claimants in Alden, and would present a court with a situation moreanalogous to Reich than to Alden.

142. Compare Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (introducingthe regulatory taking concept by stating that “while property may be regulated to acertain extent, if a regulation goes too far it will be recognized as a taking”), withLoretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–35 (1982)(holding that permanent physical occupation and control of private property bythe government is per se a taking).

143. See Loretto, 458 U.S. at 434–35, 439–40.144. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)

(“The second situation in which we have found categorical treatment [concludingthat a taking occurs] appropriate is where regulation denies all economically bene-ficial use of land.”).

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examines, among other things, the degree to which a given regula-tion interferes with “investment-backed expectations.”145

Fitting governmental appropriations of labor into this complexframework presents several challenges. First, what exactly is appro-priated when, for example, a court requires a lawyer to represent anindigent client without pay? The court is not taking physical con-trol over the lawyer; he or she is not prohibited from going home inthe evenings or even from representing other clients, provided thattime and resources would permit this. But on the other hand, thegovernment is making direct use of the lawyer’s labor for the timeduring which he or she is serving the client. The fact that the law-yer’s labor is not a tangible asset, such as a machine that could becommandeered by government for a period of time or a factorythat could be partly occupied by government, renders it difficult todetermine whether such an appropriation would be evaluatedunder physical takings or regulatory takings jurisprudence. Similarquestions have been asked by other scholars examining the interac-tion between other intangible property rights and takingsjurisprudence.146

Many of the courts that favorably evaluated lawyers’ takingsclaims have seemed to conclude implicitly that the regulatory tak-ing analysis is most appropriate, since it enables the government toappropriate some of the economic value of the lawyer’s labor with-out giving rise to a compensation requirement.147 Language fromanother case, however, appears to suggest that a full governmenttakeover of a lawyer’s labor, compelling him or her to act according

145. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l PlanningAgency, 535 U.S. 302, 326 (2002) (stating that “we still resist the temptation toadopt per se rules in our cases involving partial regulatory takings, preferring toexamine a number of factors rather than a simple mathematically preciseformula”) (internal quotation marks omitted).

146. See Mitchell N. Berman et al., State Accountability for Violations of IntellectualProperty Rights: How to “Fix” Florida Prepaid (And How Not To), 79 TEX. L. REV.1037, 1069–70 (2001) (noting that scholars and courts have difficulty determiningwhether a governmental appropriation of intellectual property should be evalu-ated under the Supreme Court’s regulatory takings or physical occupation takingsjurisprudence); Thomas F. Cotter, Do Federal Uses of Intellectual Property Implicate theFifth Amendment?, 50 FLA. L. REV. 529, 558–565 (1998) (arguing that only regula-tions or government appropriations that deprive intellectual property owners ofvirtually all of the property’s economic value are certain to be considered takings,but that the physical appropriation strand of takings case law provides the mostappropriate doctrinal vehicle for analysis).

147. See, e.g., Bias v. State, 568 P.2d 1269, 1272 (Okla. 1977) (holding thatonly the required provision of “extraordinary professional services” would rise tothe level of a taking).

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to the government’s command, would constitute a physical appro-priation of the lawyer’s labor and a per se taking under Loretto.148

But incarceration of the wrongfully convicted presents a verydifferent set of circumstances from those facing the lawyer who iscompelled to serve, circumstances leading to the conclusion that ataking could be found under the regulatory or physical appropria-tion lines of cases. During the entire time of her wrongful incarcer-ation, the wrongfully convicted prisoner is unable to earn anyoutside wages due to both the very real physical restraints and con-trol imposed by prison officials, and the regulatory prohibition im-posed by prison life on engaging in productive outside labor whileremaining incarcerated. Thus, even if they are forced to proceedunder a regulatory takings analysis, wrongfully convicted individualsshould be able to invoke the rule in Lucas that a regulation depriv-ing individuals of all economic value of their property effects a per setaking.149

3. “Use” to the Government vs. Harm to the Individualas a Measure of Takings Damages

Some have expressed concern that government has no takings-related obligation to compensate wrongfully convicted individualsbecause it received no tangible benefit from the appropriation oftheir labor.150 Those who provide legal services for the indigentunder court order, for example, are providing something thatclearly is useful to government, for absent the compelled servicethe government would either have to pay a competitive wage to alawyer to provide constitutionally adequate counsel or, in caseswhere individuals lack legal entitlement to a lawyer, reduce individ-uals’ access to justice. Meanwhile, the wrongfully convicted havegiven no direct benefit to government for the duration of their im-prisonment, except perhaps for incidental services provided whilein prison. Professor Jed Rubenfeld argues that the public use por-tion of the federal Takings Clause acts as a limitation on compensa-tion as much as it does on exercise of authority, requiring

148. See Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 706 n.13 (D.C.Cir. 1984) (noting that “[i]n takings law, a direct government takeover long hasbeen a key indicium of compensation”) (quoting William H. Rodgers, Jr., BringingPeople Back: Toward a Comprehensive Theory of Taking in Natural Resource Law, 10ECOLOGY L.Q. 205, 234 (1982)) (internal quotation marks omitted).

149. See Lucas, 505 U.S. at 1015.150. See supra note 73, which expresses King’s concern that the wrongfully R

convicted’s takings claims would not succeed due to “the notion that the govern-ment should receive tangible benefit for the taking.” King, supra note 24, at 1093 Rn.15.

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compensation only when property is actually used by government,rather than simply destroyed by it to advance the public interest.151

A few older state court cases support this claim.152 If Rubenfeld’srequirement found widespread acceptance, it would seem to defeatthe wrongfully convicted’s claim for compensation.

But current law is not on Professor Rubenfeld’s side. The Su-preme Court recently affirmed that the measure of damages underthe federal Takings Clause is harm to the individual rather than useto the government, definitively rejecting the principle that the gov-ernment must obtain a benefit in order for its compensation obliga-tion to be invoked. According to the Court in Brown v. LegalFoundation of Washington, decided this past term, “the ‘just compen-sation’ required by the Fifth Amendment is measured by the prop-erty owner’s loss rather than the government’s gain. Thisconclusion is supported by consistent and unambiguous holdingsin our cases.”153 As long as the measure of damages in takings con-tinues to be the amount by which the person whose property wasappropriated was injured, the wrongfully convicted individualshould be able to recover for losses suffered during wrongfulimprisonment.

4. The Role of the Thirteenth Amendment

The Thirteenth Amendment of the United States Constitutionmay also affect the analysis of whether states could appropriate la-bor via an otherwise legal, but ultimately erroneous, convictionwithout being subject to liability under federal or state TakingsClauses.154 The Thirteenth Amendment prohibits slavery or invol-untary servitude, but contains an exception for individuals who are“duly convicted.” Courts have read this provision to permit prison-ers to be subjected to chain gangs, forced labor, and other condi-tions akin to slavery while they are incarcerated for committing a

151. Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1114–15 (1993) (advancingthe argument that “a taking for public use, as we are construing the phrase, canoccur only when some productive attribute or capacity of private property is ex-ploited for state-dictated service”).

152. See, e.g., Willard v. City of Eugene, 550 P.2d 457, 459 (Or. Ct. App. 1976)(holding that government demolition of a hazardous building did not give rise to atakings claim because the city did not “acquire[ ] any right or thing that the publiccould use”).

153. 538 U.S. 216, 235–36 (2003) (internal citation omitted).154. “Neither slavery nor involuntary servitude, except as a punishment for a

crime whereof the party shall have been duly convicted, shall exist within the UnitedStates, or any place subject to their jurisdiction.” U.S. CONST. amend. XIII § 1(emphasis added).

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crime.155 Lower courts have denied prisoners’ claims that they de-serve higher levels of compensation for their labor while in prisonunder a valid conviction.156

But since the Thirteenth Amendment is a rights-expandingprovision rather than a rights-limiting one, courts have not treatedits “duly convicted” exception as a bar to recovery for violations ofother constitutional provisions. The Thirteenth Amendment, forexample, has not been held to limit the availability of prisoners’claims that the labor that they were forced to perform while inprison constituted cruel and unusual punishment, in contraventionof the Eighth Amendment.157 Under this same logic, an individualwho otherwise possesses a valid takings claim for appropriation ofher productive labor while wrongfully imprisoned should not beprevented from recovering by the mere existence of the constitu-tional clause allowing governments to put the “duly convicted” towork.

C. Obtaining a Remedy

Even if wrongfully convicted individuals are able to mount aclaim for compensation under state or federal takings clauses, theymay face yet another obstacle to recovery if states against whom re-covery is sought assert sovereign immunity as a defense to the suit.Recent cases have sharply limited private litigants’ ability to obtain

155. See, e.g., United States v. Reynolds 235 U.S. 133, 149 (1914) (“There canbe no doubt that the State has authority to impose involuntary servitude as a pun-ishment for crime. This fact is recognized in the Thirteenth Amendment, andsuch punishment expressly excepted from its terms.”).

156. See, e.g., Marchese v. United States, 453 F.2d 1268, 1272 (Ct. Cl. 1972)(holding that a convicted prisoner “would not be entitled to the normal wages of acitizen ‘outside’, since he was properly in jail and could not have earned that kindof pay. His was still the limited world of the prison, and any compensation whichhe could demand would be measured by the standards of that special universe.”).

157. See, e.g., Ray v. Mabry, 556 F.2d 881 (8th Cir. 1977) (holding that a pris-oner could make out a claim that the hard labor to which he was subjected consti-tuted cruel and unusual punishment in contravention of the Eighth Amendment,notwithstanding the provision of the Thirteenth Amendment authorizing states toimpose involuntary servitude as a punishment for a crime); Jackson v. Cain, 864F.2d 1235, 1246 (5th Cir. 1989) (relying on Ray to hold that forcing prisoners towork in unsafe environments constituted cruel and unusual punishment in contra-vention of the Eighth Amendment); Choate v. Lockhart, 7 F.3d 1370, 1376 (8thCir. 1993) (supporting Ray’s holding, while dismissing prisoner’s claim on othergrounds).

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retrospective monetary relief from state governments in state orfederal courts.158

But another line of recent cases suggests that the compensa-tion requirement of the federal Takings Clause trumps state sover-eign immunity even for temporary takings. The Supreme Court’sdecision in First English Evangelical Lutheran Church of Glendale v.County of Los Angeles159 indicated that if the government temporarilytakes property, it cannot evade compensation for the temporarytaking simply by giving up its appropriation, notwithstanding theexistence of state sovereign immunity.160 While many commenta-tors have concluded that the decision in First English abrogates statesovereign immunity and requires states to provide a monetary rem-edy to individuals when they take an individual’s property,161 a re-cent Supreme Court concurrence, as well as a recent article byProfessor Richard Seamon, have questioned whether the decisionitself requires states to make themselves amenable to suits for justcompensation despite the commands of the Eleventh Amend-ment.162 Seamon ultimately concludes, however, that the Courtshould require states under the Due Process Clause of the Four-teenth Amendment to ensure “reasonable, certain and adequateprovision” of a financial remedy for takings in some forum, even ifit is through an administrative body or another statutory vehicle, orelse waive their sovereign immunity in their own state courts to fed-

158. See, e.g., Alden v. Maine, 527 U.S. 706 (1999) (extending sovereign im-munity to suits against states for retrospective monetary relief brought in statecourt as well as suits brought in federal court); Bd. of Tr. of Univ. of Ala. v. Garrett,531 U.S. 356 (2001) (concluding that Congress could not abrogate state sovereignimmunity to allow private suits for damages authorized by a provision of the fed-eral Americans with Disabilities Act).

159. 482 U.S. 304 (1987).160. See 482 U.S. 304, 316 n.9 (1987) (concluding that the obligation to pay

compensation for a taking overcomes state sovereign immunity because “it is theConstitution that dictates the remedy for interference with property rightsamounting to a taking”).

161. See Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76WASH. L. REV. 1067, 1072 n.19 (2001) (citing scholars who have concluded thatFirst English requires states to waive their sovereign immunity when presented witha claim for just compensation under the federal Takings Clause).

162. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687,714 (1999) (Kennedy, J., joined by Rehnquist, C.J., and Stevens & Thomas, J.J.)(stating that First English did not resolve whether “the sovereign immunity ratio-nale retains its vitality” in the takings context); Seamon, supra note 161, at 1072–75 R(contending that the First English Court did not reach the question of whether aclaim for just compensation actually abrogated state sovereign immunity in partbecause sovereign immunity was not actually at issue in the case: the defendant wasa locality, which was not entitled to Eleventh Amendment sovereign immunity).

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eral takings claims.163 Another scholarly analysis suggests morebroadly that Eleventh Amendment sovereign immunity does not ap-ply to claims brought under the federal Takings Clause.164

Professor Seamon’s analysis suggests that states may be able tomeet their obligations to the wrongfully convicted by establishingfair and adequate administrative compensation schemes, assumingthat the wrongfully convicted would otherwise be able to assert avalid takings claim against the state. Few states have establishedsuch schemes,165 leaving the remainder of states subject to suits forcompensation by the wrongfully convicted under ProfessorSeamon’s analysis, notwithstanding the existence of state sovereignimmunity.

First English did conclusively resolve another possible challengeto provision of a remedy for the wrongfully convicted. While thosewho oppose compensation might claim that because an individual’swrongful confinement was temporary and has ceased, no compen-sation is required, the Court in First English firmly held that govern-ments were obligated to compensate individuals even for temporarytakings: “where the government’s activities have already worked ataking of all use of property, no subsequent action by the govern-ment can relieve it of the duty to provide compensation for theperiod during which the taking was effective.”166 Nothing in the

163. See Seamon, supra note 161, at 1101–17 (concluding that states need to Rprovide a “‘reasonable, certain and adequate provision for obtaining compensa-tion’” in the event of a taking to meet constitutional commands) (quoting William-son County Reg’l Plan. Comm’n v. Hamilton Bank, 473 U.S. 172, 194 (1985)).

164. See Eric Berger, The Collision of Takings and State Sovereign ImmunityDoctrines (June 10, 2003) (unpublished manuscript, on file with the author) (ar-guing that a textual and structural reading of the Takings Clause compels the con-clusion that takings remedies are compelled by the Constitution, notwithstandingstate sovereign immunity).

165. See supra notes 35–42 and accompanying text (discussing the shortage of Rstates with adequate legislatively-established compensation schemes). The Districtof Columbia, D.C. CODE ANN. § 2-416 (2003), Ohio, OHIO REV. CODE ANN.§ 2743.48(E)(2)(c) (2002) (providing that the wrongfully convicted individualshall receive compensation for “[a]ny loss of wages, salary, or other earned incomethat directly resulted from the wrongfully inprisioned individual’s arrest, prosecu-tion, conviction, and wrongful imprisonment”), and New York, N.Y. CT. CL. ACT

§ 8-b(6) (Consol. 2002) (“[I]f the court finds that the claimant is entitled to ajudgment, it shall award damages in such sum of money as the court determineswill fairly and reasonably compensate him.”), are among the states that promisefull compensation and do not require a gubernatorial pardon or other discretion-ary act before the entitlement to compensation vests. Most other states lack theseguarantees.

166. First English Evangelical Lutheran Church of Glendale v. County of LosAngeles, 482 U.S. 304, 321 (1987).

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Court’s recent decision in Tahoe-Sierra Preservation Council v. TahoeRegional Planning Agency,167 which determined that a temporarybuilding moratorium did not constitute a per se temporary regula-tory taking of property, affected the Court’s prior holding in FirstEnglish that if a taking could be proven, compensation would bedue for the period of the taking.168

III.CONCLUSION

Strong moral and pragmatic arguments support provision ofcompensation for the wrongfully convicted, who have dispropor-tionately and unjustly borne the burdens of errors in the adminis-tration of criminal justice. State and federal legislatures have notaddressed the need for compensation, even as increasing numbersof people prove that they have not committed the crimes for whichthey were convicted and imprisoned. This Note has argued thattakings remedies in several jurisdictions may be available to assistthe wrongfully convicted, despite legislative inaction.

Wrongfully convicted individuals’ lawyers must test this argu-ment by bringing takings claims on behalf of their clients assertingthe right to compensation under state and federal constitutionallaw. While no state has yet prohibited the wrongfully convictedfrom obtaining takings-based relief, test litigation on behalf of thewrongfully convicted would be most supported by circumstancesand legal doctrine in states such as Missouri and Alaska that lackstatutory means of relief for the wrongfully convicted but that havealready explicitly held that governmental appropriations of laborrequire compensation under the takings clauses of their state con-stitutions. Litigation in other jurisdictions may also be successful ifwrongfully convicted individuals are able to demonstrate that gov-ernmental appropriations of labor not covered by the civic dutyrule can give rise to takings claims.

This Note revisits Edwin Borchard’s underappreciated takings-based claim for of compensation because powerful arguments canbe marshaled on its behalf. But as Professor Borchard stated in1932, “[w]hatever the most convincing theory, compensation re-sponds to an elementary demand for justice harbored in every

167. 535 U.S. 302 (2002).168. See id. at 336–30 (stating that First English addressed the remedial ques-

tion of whether compensation was due if a temporary taking could be demon-strated, but did not speak to whether a temporary restriction on use of propertyconstituted a taking).

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human breast. . . . The least the community can do to repair theirreparable, is to appease the public conscience by making such res-titution as it can by indemnity.”169 Takings-based remedies thatcompensate wrongfully convicted individuals for damage to recog-nized property rights may be both available and necessary, but the“elementary demand for justice” will not be satisfied until adequatecompensation is provided in all jurisdictions to those who have losttheir liberty and property as a result of their wrongful convictionand imprisonment.

169. BORCHARD, CONVICTING THE INNOCENT, supra note 2, at 392. R